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House of Reps examines rape legislation
House Bill 2343, sponsored by Rep. Sara Gelser, would change how laws handle incapacitation
Theo Hendrickson
Issue date: 6/4/09 Section: News
The Oregon Legislature has proposed to change the state's rape laws. The changes would take into account how the victim became intoxicated if intoxicants were a factor.
House Bill 2343, sponsored by Rep. Sara Gelser, D-Corvallis, says that if the victim is unknowingly put under the influence by someone other than the alleged offender and the alleged offender is accused of a sex crime, the defendant can only be charged with sex abuse in the second degree, which could potentially lead to time in the county jail and probation.
The accused would not be charged with a Measure 11 crime, which can carry a minimum sentence of about six years.
"The potential for the increase in penalties is already out there. It would probably increase [the defendant's] willingness to enter into different plea bargains, and it might increase the ability of the prosecuting attorney's office to convict them of certain charges," said Kara Daley, attorney at law.
Oregon Criminal code 163.325 states that when "the victim is mentally defective, mentally incapacitated or physically helpless, it is an affirmative defense for the defendant to prove that, at the time of the alleged offense, the defendant did not know of the facts or conditions responsible for the victim's incapacity to consent."
The new bill defines "mentally incapacitated" as when a "person is rendered incapable of appraising or controlling the conduct of the person at the time of the alleged offense as a result of illness or some other cause."
In situations where the victim had too much to drink or had something put in their drink without their knowledge, the defendant won't be able to argue how intoxicated the victim was, where consent was not possible.
"The current law permits a rapist to exploit a victim's incapacitated condition so long as he did not surreptitiously administer the intoxicant. Tragically, it also communicates to victims who voluntarily consumed alcohol that they deserved to be raped," said Christine Herman, JD, Sexual Assault Task Force executive director.
House Bill 2343, sponsored by Rep. Sara Gelser, D-Corvallis, says that if the victim is unknowingly put under the influence by someone other than the alleged offender and the alleged offender is accused of a sex crime, the defendant can only be charged with sex abuse in the second degree, which could potentially lead to time in the county jail and probation.
The accused would not be charged with a Measure 11 crime, which can carry a minimum sentence of about six years.
"The potential for the increase in penalties is already out there. It would probably increase [the defendant's] willingness to enter into different plea bargains, and it might increase the ability of the prosecuting attorney's office to convict them of certain charges," said Kara Daley, attorney at law.
Oregon Criminal code 163.325 states that when "the victim is mentally defective, mentally incapacitated or physically helpless, it is an affirmative defense for the defendant to prove that, at the time of the alleged offense, the defendant did not know of the facts or conditions responsible for the victim's incapacity to consent."
The new bill defines "mentally incapacitated" as when a "person is rendered incapable of appraising or controlling the conduct of the person at the time of the alleged offense as a result of illness or some other cause."
In situations where the victim had too much to drink or had something put in their drink without their knowledge, the defendant won't be able to argue how intoxicated the victim was, where consent was not possible.
"The current law permits a rapist to exploit a victim's incapacitated condition so long as he did not surreptitiously administer the intoxicant. Tragically, it also communicates to victims who voluntarily consumed alcohol that they deserved to be raped," said Christine Herman, JD, Sexual Assault Task Force executive director.
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