2015 ORS 163.425¹
Sexual abuse in the second degree

(1) A person commits the crime of sexual abuse in the second degree when:

(a) The person subjects another person to sexual intercourse, deviate sexual intercourse or, except as provided in ORS 163.412 (Exceptions to unlawful sexual penetration prohibition), penetration of the vagina, anus or penis with any object other than the penis or mouth of the actor and the victim does not consent thereto; or

(b)(A) The person violates ORS 163.415 (Sexual abuse in the third degree) (1)(a)(B);

(B) The person is 21 years of age or older; and

(C) At any time before the commission of the offense, the person was the victim’s coach as defined in ORS 163.426 (Crime category classification for sexual abuse in the second degree).

(2) Sexual abuse in the second degree is a Class C felony. [1971 c.743 §116; 1983 c.564 §1; 1991 c.386 §14; 1991 c.830 §2; 2009 c.876 §2]

Notes of Decisions

"Sexual contact" in this statute is applicable to more than the reproductive organs. State v. Pagel, 16 Or App 412, 518 P2d 1037 (1974), Sup Ct review denied

Sexual abuse in the first de­gree was held not to be a lesser-included of­fense of at­tempted rape. State ex rel Juvenile Dept. v. Knox, 20 Or App 455, 532 P2d 245 (1975)

Where defendant opposed state's mo­tion, to consolidate both at­tempted rape and sexual abuse charges resulting from same con­duct, he waived double jeopardy protec­tion and the two findings of guilty were properly merged into one con­vic­­tion for sen­ten­cing. State v. Brissette, 31 Or App 1243, 572 P2d 1068 (1977)

Sexual abuse charge was merged in sodomy con­vic­­tion where first sexual contact and at least one act of sodomy were not so separated in time, intervening events, or other circumstances as not to be consecutive steps in sodomy. State v. Harris, 287 Or 335, 599 P2d 456 (1979)

In pros­e­cu­­tion under this sec­tion, evidence that defendant was being sexually fondled by his wife and that he at­tempted to expose himself to children in back seat of his car was probative of sexual arousal and was therefore relevant evidence of sexual contact with victim. State v. Fitch, 47 Or App 205, 613 P2d 1108 (1980)

Where defendant drove victim substantial distance in his pickup truck and detained her for over eight hours, this was not type of minimal displace­ment incidental to com­mis­sion of sodomy so failure to merge kidnapping and sodomy con­vic­­tions and sen­tences was not error. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)

Failure to merge sodomy and sexual abuse con­vic­­tions was not error where events were separated by several hours, occurred in different loca­tions and settings, and were separated by a number of intervening events. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)

Language of this sec­tion does not, by itself, make sexual abuse a lesser included of­fense in charge of at­tempted rape in the first de­gree. State v. Sears, 70 Or App 537, 689 P2d 1324 (1984)

Indict­ment sufficiently alleged sexual abuse in the first de­gree, because allega­tion of "sexual contact" includes by defini­tion asser­tion that "sexual" or "other intimate parts" were touched. State v. Taylor, 94 Or App 538, 765 P2d 1257 (1988)

Where defendant approached 7-year-old girl and 9-year-old girl separately in depart­ment store and touched buttocks, there was evidence from which ra­tional trier of fact could conclude girls both considered their buttocks as intimate and from which trier of fact could have found that reasonable per­son would have known girls' buttocks were intimate under circumstances. State v. Stacy, 113 Or App 141, 830 P2d 624 (1992), Sup Ct review denied

First de­gree sexual abuse charged under pre-1991 version of this sec­tion is subject to statute of limita­tions applicable to same of­fense under ORS 163.427 (Sexual abuse in the first degree). State v. Sharp, 151 Or App 122, 949 P2d 1230 (1997), Sup Ct review denied

Lack of con­sent by victim may be actual or may result from victim's lack of capacity to con­sent because victim was under 18 years of age. State v. Stamper, 197 Or App 413, 106 P3d 172 (2005), Sup Ct review denied; State v. Simonson, 243 Or App 535, 259 P3d 962 (2011), Sup Ct review denied; State v. Ofodrinwa, 353 Or 507, 300 P3d 154 (2013)

Sentence for having sex with mi­nor 16 or 17 years old on theory that mi­nor cannot legally con­sent violates Article I, sec­tion 16 of state constitu­tion if sen­tence exceeds sen­tence allowable for having sex with mi­nor under 16 years old. State v. Simonson, 243 Or App 535, 259 P3d 962 (2011), Sup Ct review denied

"[D]oes not con­sent" includes lack of capacity to con­sent. State v. Ofodrinwa, 353 Or 507, 300 P3d 154 (2013); State v. Pass, 264 Or App 583, 333 P3d 1139 (2014)

"Subjects" as used in this sec­tion means to cause to undergo, to expose to or to make accessible to, and defendant who participated in sexual con­duct with mi­nor, even where mi­nor initiated con­duct, committed sexual abuse under this sec­tion. State v. Bernhardt, 277 Or App 868, 376 P3d 316 (2016)

Law Review Cita­tions

68 OLR 255 (1989)

Notes of Decisions

Under evidence that defendant inten­tionally touched victim's buttocks through clothing, whether such con­duct constituted "sexual contact" of victim's "intimate parts" was ques­tion for jury. State v. Buller, 31 Or App 889, 581 P2d 1263 (1977)

Genitalia and breasts are intimate parts as matter of law under this sec­tion, and undeveloped genitalia and breasts of children are included within defini­tion. State v. Turner, 33 Or App 157, 575 P2d 1007 (1978), Sup Ct review denied

Rule that state is not permitted to introduce evidence of other crimes or bad acts solely to prove defendant acted as on prior occasions is strictly applied in sex crime cases, even those involving deviate sexual behavior, in so far as con­duct with per­sons other than victim is concerned. State v. Sicks, 33 Or App 435, 576 P2d 834 (1978)

Law Review Cita­tions

51 OLR 428, 518-522, 555 (1972)

Chapter 163

Law Review Cita­tions

51 OLR 427-637 (1972)


1 Legislative Counsel Committee, CHAPTER 163—Offenses Against Persons, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors163.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 163, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano163.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.