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The Logic of Sex Laws

Consensual Sex vs. Underage Sex

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REGULATING THE LEGAL mechanics of sexual relations is doomed to be controversial. But a recent case in Washington County brings to light one of the more convoluted loopholes in Oregon's sex laws.

Compared to the rest of the country, Oregon has a pretty strict definition of underage sex.

In 39 other states, having consensual sex with a 17-year-old is perfectly legal. In Oregon, it's at least a misdemeanor. But at worst, under a precedent upheld in an appellate court last month, it could be charged as a felony worse than rape.

The tough laws have some local lawyers asking: Should all sex under age 18 be considered a serious crime? Or would the laws be more just if there were a much wider distinction between rape and underage sex?

The case upheld last month is the State v. Eugene Ofodrinwa. On Christmas Eve 2007, police responded to a "male versus female dispute" at the house of Eugene Ofodrinwa's girlfriend. When the officer found an empty condom wrapper in Ofodrinwa's pocket and learned that Ofodrinwa was 21 and his girlfriend 16, he started questioning Ofodrinwa, who quickly admitted that the pair had been having sex and were in love. Ofodrinwa was charged with four counts of sex abuse.

At the trial, the girlfriend didn't show up to testify. But her mom did, saying she had told Ofodrinwa that he wasn't allowed to date her daughter because "the age thing was not okay." The pair had continued dating secretly for months.

Ofodrinwa was eventually put just on probation—but under the judge's order, he will have to register as a sex offender for the rest of his life.

Ofodrinwa's public defender, Gabe Biello, says the case is indicative of an unfair system. "There are people who are predatory sex offenders, who are dangerous—but what they do by casting such a wide net is equate these kids with people who forcibly rape someone," says Biello. "Frankly, I think going after these cases affects the resources to go after the serious ones."

Although Ofodrinwa appealed his case, Judge Gayle Ann Nachtigal decided against him in early March, pointing to a precedent set by a case called State v. Stamper. Under Stamper, otherwise consensual sex with a 16- or 17-year-old could be charged as felony sex abuse II—a crime more serious than some kinds of rape.

That decision piqued the interest of lawyer Ryan Scott, who posted a long entry on the Multnomah County public defenders' blog headlined: "A Shameful Day for the Court of Appeals... and Oregon." Judge Nachtigal could not legally comment for this story.

Scott says he's seen about a half-dozen cases like Ofodrinwa's in the past year. Frequently, the cases are prosecuted at the request of a parent who finds out about the relationship.

Scott points out that State v. Stamper sets harsher rules for sex with a 16- or 17-year-old than exist under state law.

Scott argues that the state's sex laws should distinguish between rape and sex that is nonconsensual only because of age.

Standing up on the side of sex offenders is, clearly, a complicated position. In Stamper, the defendant was a 30-year-old man who had sex with his 17-year-old niece.

Laws enforcing the age of consensual sex exist to keep older people from taking advantage of young people's presumed powerlessness and naiveté. People under 18 in Oregon are legally unable to consent to sex under the same law that makes sex with people who are "mentally defective, mentally incapacitated, or physically helpless" nonconsensual.

The legislature breaks down punishment for underage sex based on how young the person is. Sex with someone under 12, for example, is felony rape I. Sex with someone under 16 is a less-serious felony, rape III. Sex with someone age 16 to 18 is sex abuse III, a misdemeanor, though Stamper allows it to be charged as sex abuse II, a felony.

"No consent means no consent—but underage consent is different," says Scott. "Even if we don't like 16- or 17-year-olds having sex, we should be able to distinguish those cases, like Mr. Ofodrinwa's, from cases where someone did not have consent."

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