ORS 163.405¹
Sodomy in the first degree

(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:

(a) The victim is subjected to forcible compulsion by the actor;

(b) The victim is under 12 years of age;

(c) The victim is under 16 years of age and is the actor’s brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actor’s spouse; or

(d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.

(2) Sodomy in the first degree is a Class A felony. [1971 c.743 §114; 1989 c.359 §4]

Notes of Decisions

Trial court was not re­quired to merge crimes of first de­gree sodomy and first de­gree rape (ORS 163.375 (Rape in the first degree)) for con­vic­­tion and sen­ten­cing. State v. Kendrick, 31 Or App 1195, 572 P2d 354 (1977), Sup Ct review denied

Where defendant placed bound victim in rear seat of car and anally and orally committed sodomy, the two acts of sodomy constituted two separate crimes, separately punishable. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

Where record of trial of defendant convicted under this sec­tion clearly indicated that Judge and de­fense counsel were not aware of alternative pro­vi­sions for dealing with sexually dangerous per­sons, pursuant to ORS 426.675 (Determination of sexually dangerous persons), matter was remanded for reconsidera­tion. State v. Morse, 35 Or App 7, 580 P2d 1038 (1978)

Testimony of defendant's daughter, who was victim's babysitter, that daughter reported to girl's mother that defendant had "tingled" victim, was prejudicial hearsay. State v. McGaughy, 39 Or App 275, 591 P2d 1194 (1979)

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)

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)

Defendant who forcibly compels an­oth­er per­son to engage in deviate sexual intercourse with third per­son can be convicted of sodomy and rape under this sec­tion. State v. Harvey, 303 Or 351, 736 P2d 191 (1987)

Where peti­tioner sought review of order setting parole release date arguing that Board erred in applying risk aggrava­tion factor C, it was determined that victims' ages as defining ele­ment of crimes and their particular vulnerability due to youth are not same and peti­tioner's hearing satisfied due process require­ments. Jarvis v. State Board of Parole, 96 Or App 322, 773 P2d 3 (1989), Sup Ct review denied

Trial court was not re­quired to consolidate sen­tences for six separate con­vic­­tions, one count each of first and third de­gree rape and two counts each of first and third de­gree sodomy because each first de­gree crime re­quired proof of ele­ment not necessary to prove corresponding third de­gree crime and legislature addressed distinct social concern in enacting each of statutory alternatives on which defendant was convicted. State v. Crotsley, 308 Or 272, 779 P2d 600 (1989)

Where defendant was charged only with sodomy and jury could not ra­tionally and consistently conclude that he intended only sexual abuse, evidence did not support instruc­tion for at­tempted sexual abuse. State v. Fox, 111 Or App 362, 826 P2d 89 (1992), Sup Ct review denied

Where record contained evidence from which ra­tional jury could infer that defendant threatened, expressly or impliedly, to use physical force against an­oth­er, trial court did not err in denying defendant's mo­tion for acquittal. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Prohibi­tion against deviate sexual intercourse with per­son "incapable of con­sent by reason of mental defect" is not vague under federal constitu­tional standards. Anderson v. Morrow, 371 F3d 1027 (9th Cir. 2004)

Law Review Cita­tions

51 OLR 501-504 (1972)

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/­Archive/­2007ors163.­pdf (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 163, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­163ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
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. Currency Information