Chapter 949 Oregon Laws 1999

Session Law

AN ACT

SB 944

Relating to sex offenses; amending ORS 40.210, 163.305 and 163.315.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 163.305 is amended to read:

163.305. As used in chapter 743, Oregon Laws 1971, unless the context requires otherwise:

(1) "Deviate sexual intercourse" means sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.

(2) "Forcible compulsion" means to compel by:

(a) Physical force [that overcomes earnest resistance]; or

(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped.

(3) "Mentally defective" means that a person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person.

(4) "Mentally incapacitated" means that a person is rendered incapable of appraising or controlling the conduct of the person at the time of the alleged offense because of the influence of a controlled or other intoxicating substance administered to the person without the consent of the person or because of any other act committed upon the person without the consent of the person.

(5) "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(6) "Sexual contact" means any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.

(7) "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight; emission is not required.

SECTION 2. ORS 163.315 is amended to read:

163.315. (1) A person is considered incapable of consenting to a sexual act if the person is:

[(1)] (a) Under 18 years of age; or

[(2)] (b) Mentally defective; or

[(3)] (c) Mentally incapacitated; or

[(4)] (d) Physically helpless.

(2) A lack of verbal or physical resistance does not, by itself, constitute consent but may be considered by the trier of fact along with all other relevant evidence.

SECTION 3. ORS 40.210 is amended to read:

40.210. (1) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.427, or in a prosecution for an attempt to commit [such a crime,] one of these crimes, the following evidence is not admissible:

(a) Reputation or opinion evidence of the past sexual behavior of an alleged victim of [such] the crime or a corroborating witness; or [is not admissible]

(b) Reputation or opinion evidence presented for the purpose of showing that the manner of dress of an alleged victim of the crime incited the crime or indicated consent to the sexual acts alleged in the charge.

(2) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.427, or in a prosecution for an attempt to commit [such a crime] one of these crimes, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless [such] the evidence other than reputation or opinion evidence:

(a) Is admitted in accordance with subsection [(3)(a) and (b)] (4) of this section; and

(b) Is evidence that:

(A) Relates to the motive or bias of the alleged victim; [or]

(B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or

(3) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.427, or in a prosecution for an attempt to commit one of these crimes, evidence, other than reputation or opinion evidence, of the manner of dress of the alleged victim or a corroborating witness, presented by a person accused of committing the crime, is also not admissible, unless the evidence is:

(a) Admitted in accordance with subsection (4) of this section; and

(b) Is evidence that:

(A) Relates to the motive or bias of the alleged victim;

(B) Is necessary to rebut or explain scientific, medical or testimonial evidence offered by the state;

(C) Is necessary to establish the identity of the victim; or

(D) Is otherwise constitutionally required to be admitted.

[(3)(a)] (4)(a) If the person accused of committing rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse intends to offer [under subsection (2) of this section evidence of specific instances of the alleged victim's past sexual behavior] evidence under subsection (2) or (3) of this section, the accused shall make a written motion to offer [such] the evidence not later than 15 days before the date on which the trial in which [such] the evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which [such] the evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties, and on the alleged victim through the office of the prosecutor.

(b) The motion described in paragraph (a) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (2) or (3) of this section, the court shall order a hearing in camera to determine if [such] the evidence is admissible. At [such] the hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding ORS 40.030 (2), if the relevancy of the evidence that the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in camera or at a subsequent hearing in camera scheduled for [such] the same purpose, shall accept evidence on the issue of whether [such] the condition of fact is fulfilled and shall determine [such] the issue.

(c) If the court determines on the basis of the hearing described in paragraph (b) of this subsection that the evidence the accused seeks to offer is relevant and that the probative value of [such] the evidence outweighs the danger of unfair prejudice, [such] the evidence shall be admissible in the trial to the extent an order made by the court specifies evidence that may be offered and areas with respect to which [the alleged victim] a witness may be examined or cross-examined. An order admitting evidence under this subsection may be appealed by the government before trial.

[(4)] (5) For purposes of this section:

(a) "In camera" means out of the presence of the public and the jury; and

(b) "Past sexual behavior" means sexual behavior other than the sexual behavior with respect to which rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse is alleged.

Approved by the Governor August 16, 1999

Filed in the office of Secretary of State August 16, 1999

Effective date October 23, 1999

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