Consent Laws
Oregon

Oregon does not specifically define “consent.” However, a person is considered incapable of consenting to a sexual act if the person is:

• (a) under 18 years of age;
• (b)incapable of appraising the nature of the person’s conduct;
• (c) mentally incapacitated; or
• (d) physically helpless. 

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.

A person is incapable of appraising the nature of the person’s conduct if:

• (a) the person is unable to understand the nature of the conduct;
• (b) the person is unable to understand the right to choose whether and how to engage in conduct, including the right to revoke a prior decision to engage in conduct; or
• (c) the person is unable to communicate a decision to engage in conduct.

Or. Rev. Stat. § 163.315.

No.

18 years old. Or. Rev. Stat. § 163.315. Additionally:

• It is rape in the first degree to have sexual intercourse with a victim under the age of 12 or if the victim is under the age of 16 and is the person’s sibling, child, or spouse’s child.  Or. Rev. Stat. §§ 163.375(1)(b), (1)(c).
• It is rape in the second degree to have sexual intercourse with a person under the age of 14.  Or. Rev. Stat. § 163.365(1).
• It is rape in the third degree to have sexual intercourse with another person under 16 years of age.  Or. Rev. Stat. § 163.355(1).
• It is sodomy in the first degree to engage in oral or anal sexual intercourse with a victim under the age of 12 or if the victim is under the age of 16 and is the person’s sibling, child, or spouse’s child. Or. Rev. Stat. §§ 163.405(1)(b), (1)(c).
• It is sodomy in the second degree to engage in oral or anal sexual intercourse with a person under age 14. Or. Rev. Stat. § 163.395(1).
• It is sodomy in the third degree to engage in oral or anal sexual intercourse with another person under 16 years of age. Or. Rev. Stat. § 163.385(1).
• It is sexual abuse in the first degree to subject another person to sexual contact if the victim is less than 14 years of age or to intentionally cause a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person. Or. Rev. Stat. § 163.427(1)(a)(A), 1(b).

Yes. For prosecution under the following rape and related crime statutes in which the victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age, it is a defense that the actor was less than three years older than the victim at the time of the alleged offense:

• rape in the 2^nd and 3^rd degree;
• sodomy in the 2^nd and 3^rd degree;
• sexual abuse in the 1^st, 2^nd, and 3^rd degree;
• contributing to the delinquency of a minor;
• unlawful sexual penetration in the second degree when the object used to commit the unlawful act was the hand or any part thereof of the actor; and
• sexual misconduct if the victim was at least 15 years of age at the time of the alleged offense. Or. Rev. Stat. § 163.345.

No.

Yes. A person is incapable of consenting to a sexual act if they are mentally incapacitated or incapable of appraising the nature of the person's conduct. Or. Rev. Stat. § 163.315.

A person is incapable of appraising the nature of the person’s conduct if:

• (a) the person is unable to understand the nature of the conduct;
• (b) the person is unable to understand the right to choose whether and how to engage in conduct, including the right to revoke a prior decision to engage in conduct; or
• (c) the person is unable to communicate a decision to engage in conduct. Or. Rev. Stat. § 163.315(3).

“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.  Or. Rev. Stat. § 163.305(2).

A person who engages in oral or anal intercourse with another person or causes another to engage in oral or anal intercourse commits the crime of sodomy in the first degree if the victim in incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim's conduct.  Or. Rev. Stat. § 163.405.

A person commits the crime of sexual abuse in the first degree when that person subjects another person to sexual contact and the victim is incapable by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim's conduct.  Or. Rev. Stat. § 163.427.

Yes. A person is incapable of consenting to a sexual act if they are physically helpless.  Or. Rev. Stat. § 163.315.  

“Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Or. Rev. Stat. § 163.305(4).

A person who engages in oral or anal intercourse with another person or causes another to engage in oral or anal intercourse commits the crime of sodomy in the first degree if the victim in incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim's conduct.  Or. Rev. Stat. § 163.405.

A person commits the crime of sexual abuse in the first degree when that person subjects another person to sexual contact and the victim is incapable by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim's conduct.  Or. Rev. Stat. § 163.427.

Yes. The definition for “physically helpless” includes that the person is unconscious.  Or. Rev. Stat. § 163.305(4).

“Physically helpless” means the person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.  Or. Rev. Stat. § 163.305(4).    

A person is considered incapable of consenting to a sexual act if the person (among other things) is “incapable of appraising the nature of the person’s conduct”, including:

• (a) the person is unable to understand the nature of the conduct;
• (b) the person is unable to understand the right to choose whether and how to engage in conduct, including the right to revoke a prior decision to engage in conduct; or
• (c) the person is unable to communicate a decision to engage in conduct.

Or. Rev. Stat. § 163.315(3).

A person who engages in oral or anal intercourse with another person or causes another to engage in oral or anal intercourse commits the crime of sodomy in the first degree if the victim in incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim's conduct.  Or. Rev. Stat. § 163.405.

A person commits the crime of sexual abuse in the first degree when that person subjects another person to sexual contact and the victim is incapable by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim's conduct.  Or. Rev. Stat. § 163.427.

Not explicitly.

However, the definition for “physically helpless” includes that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.  Or. Rev. Stat. § 163.305(4).

Furthermore, a person is not capable of consent if they cannot appraise the nature of the person’s conduct including:

• (a) the person is unable to understand the nature of the conduct;
• (b) the person is unable to understand the right to choose whether and how to engage in conduct, including the right to revoke a prior decision to engage in conduct; or
• (c) the person is unable to communicate a decision to engage in conduct.

Or. Rev. Stat. § 163.315(3).

A person who engages in oral or anal intercourse with another person or causes another to engage in oral or anal intercourse commits the crime of sodomy in the first degree if the victim in incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim's conduct.  Or. Rev. Stat. § 163.405.

A person commits the crime of sexual abuse in the first degree when that person subjects another person to sexual contact and the victim is incapable by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim's conduct.  Or. Rev. Stat. § 163.427.

Yes. A person who has sexual intercourse with another person commits the crime of rape in the first degree if the victim is under 16 years of age and is the person’s sibling, of the whole or half blood, the person’s child or the person’s spouse’s child. Or. Rev. Stat. § 163.375(c).

• See State v. Risen, 1951, 192 Or. 557, 235 P.2d 764. (Where submission of a girl to carnal knowledge is induced through coercion of one whom she is accustomed to obey, such as parentor one standing in loco parentis, conviction may be had for forcible rape without consent on showing of less than utmost physical resistance of which she was capable.)

It is sodomy in the first degree to engage in oral or anal sexual intercourse with a victim under the age of 16 and is the person’s sibling, child, or spouse’s child. Or. Rev. Stat. §§ 163.405(1)(c).

It is second degree sexual abuse if the offender is 21 years old or older, the victim is under 18 years of age, and at any time before the offense the offender was the victim’s “coach,” meaning they instruct or train an individual or members of a team in a sport or “teacher,” meaning  an employee of a school or school district who has direct responsibility for the instruction of students. Or. Rev. Stat. §§ 163.425, 163.426.

It is custodial misconduct in the first or second degree for an individual to engage in specified sexual acts with another person when the other person is in the custody of a law enforcement agency following arrest, confined or detained in a correctional facility, participating in an adult in custody or offender work crew or work release, or on probation, parole, post-prison supervision, or other supervised release if that individual is employed by the agency that arrested the person, operates the correctional facility, or supervises the work release. Or. Rev. Stat. §§ 163.452, 163.454.

Yes. State v. Leistiko, 282 P.3d 857, 861-62 (Or. 2012) (“A defendant charged with first-degree rape by means of forcible compulsion may always raise consent as a defense, either in the sense that the sexual act occurred as a result of consent rather than as a result of forcible compulsion or in the sense that, to the extent force was involved, the victim consented to it.”)

Consent of the other person to sexual contact is not a defense to a prosecution for first or second degree custodial sexual misconduct. Or. Rev. Stat. § 163.454(2) and Or. Rev. Stat. § 163.452(2).

No. See State v. Stevens, 806 P.2d 92, 108 (Or. 1991) (quoting jury instructions that included the statement that the “use of drugs or controlled substances, dependence on drugs or controlled substances, or voluntary intoxication shall not as such constitute a defense to a criminal charge.”).