Oregon Legislature bill says courts shouldn't consider how a rape victim became vulnerable to attack
By Michelle Cole
SALEM -- A young woman at a college party gets drunk and blacks out. Then she's raped.
Oregon is one of 18 states where prosecutors and courts are allowed to consider how she became intoxicated. Did she drink too much? Did somebody slip a drug into her beer?
It matters because, under current law, if a woman is incapacitated by her own actions, the person accused of attacking her could be charged only with sex abuse in the second degree and not with the more serious crime of first-degree rape or sex abuse, which carry mandatory minimum prison sentences.
A bill generating much debate in the Legislature would change the law so that it wouldn't matter how a rape victim became vulnerable to attack.
"The question is, did she consent or not," said Rep. Sara Gelser, D-Corvallis. "Nothing else should matter."
Gail Meyer, lobbyist for the Oregon Criminal Defense Lawyers Association, has a 13-year-old daughter and says she appreciates the concerns raised by the bill's proponents.
But Meyer argues that if the law is changed, prosecutors may be more likely to pursue serious charges in questionable cases.
For example, she says, consider the couple who drink alcohol, become intoxicated, have sex and regret it in the morning.
Under House Bill 2343, the law would treat that man now accused of raping the woman he drank with the same as any stranger "who pushes a woman into the bushes and rapes her."
Meyer acknowledges that a judge and jury would still sort out the facts. But she said, "It's risky to go to trial on a Measure 11 crime."
The proposed change to Oregon's rape law comes from the attorney general's Sexual Assault Task Force. A similar measure was introduced in the 2007 Legislature but stalled.
Testifying before the House Judiciary Committee in February, Attorney General John Kroger said it is important to update Oregon law from the days when people claimed a victim's provocative clothing or behavior caused her to be raped.
"In the last 50 years, we've seen dramatic change in the law throughout the United States in which the focus of attention is no longer on the victims, their conduct, how they are dressed, and shifted solely to the perpetrators," Kroger said.
The attorney general's office also argues that the current law is arbitrary. A man who stumbles upon and rapes an unconscious woman could get prison time if someone else slipped her a drug. The same offender could get by with probation if the woman was unconscious through her own action. The intent to rape is the same but the punishment is different.
The bill was on the House floor and ready for a vote in March, but it was unexpectedly moved to the budget committee. Often such maneuvers indicate a measure lacks the sufficient votes to pass.
Legislative leaders say this bill was moved back to committee because analysts found changing the law would create the need for more prison beds, costing $125,230 in the next two years and $698,933 in 2011-13.
On Friday, Sen. Joanne Verger, D-Coos Bay, who is chairwoman of the Ways and Means Public Safety Subcommittee, couldn't say whether the bill would get back to the floor.
"We have not reached where we need to be to balance the budget in public safety," Verger said. "Anything that's not in the budget right now is very difficult to justify."
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