Smoooooooooooooching And The Law

Before the Mercury‘s former news editor quit to become the mayor’s sustainability and planning policy adviser, this reporter covered cops, courts, crime, and civil rights issues. So I should probably draw your attention, once again, to the fact that nine people were shot by a gunman in downtown Portland last night, in what is perhaps the worst violence experienced in our city’s downtown core to have occurred in the memory of most serving police officers. Compared to that, I doubt you really care about the law surrounding what my countrymen call “snogging.” But since I know you do, because, sadly, I do, too…here goes.

Last night’s Oregonian article really raises the stakes for Adams. Whatever statements his attorney has made on the subject, a zealous prosecutor could now charge him with a crime. From the Oregon Revised Statutes:

163.415 Sexual abuse in the third degree. (1) A person commits the crime of sexual abuse in the third degree if the person subjects another person to sexual contact and:
(a) The victim does not consent to the sexual contact; or
(b) The victim is incapable of consent by reason of being under 18 years of age.
(2) Sexual abuse in the third degree is a Class A misdemeanor

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

The question, then, is whether Breedlove’s intimate parts were touched for the purpose of arousing or gratifying his sexual desire. And the legal question, too, is whether Breedlove’s lips count under the definition of “intimate parts,” never mind his other parts.

Read the cases below when considering what limited amount of contact with “intimate parts” can get you charged with a crime. Someone will eventually ask Beau Breedlove whether he regards his lips as “intimate parts” and Mr. Adams’ attorney will certainly be earning his fee if a DA wants to charge him with a crime. Clearly these cases deal with a higher level crime (sexual abuse I) which is a different statute than the one Adams is worried about, but it is in the same section and the definition of “intimate parts” would be the same. And then you have to look at the case law to determine what “intimate parts” are. The following is from State v. MEYROVICH, in 2005, which found the subject’s neck to be intimate:

The only question presented in defendant’s first assignment of error, therefore, is whether the victim’s neck qualifies as an “intimate part” so as to establish the element of “sexual contact.”

In analyzing that question, we take guidance from State v. Woodley, 306 Or 458, 760 P2d 884 (1988). In that case, to save the statute from fatal vagueness, the court devised a two-step analysis for determining whether, in any particular situation, a body part is to be regarded as “intimate”:

“First, because the object of the statute is to protect persons from unwanted intimacies, the part must be regarded as ‘intimate’ by the person touched. This is a subjective test.

“Second, if an accused touched this part knowing that the touched person regarded it as intimate and did not consent, the accused violates the statute if the requisite sexual purpose is proved. If the accused, regardless of his or her private purpose, did not know that the part was ‘intimate’ to the person touched, the state must prove beyond a reasonable doubt that the accused should have recognized it to be an ‘intimate part.’ The latter is an objective test.

“In other words, the part must be subjectively intimate to the person touched, and either known by the accused to be so or to be an area of the anatomy that would be objectively known to be intimate by any reasonable person. A court may decide that no reasonable jury could find a particular part of the body to be objectively ‘intimate,’ but the court may not, in a criminal case, instruct the jury that any part is objectively ‘intimate[.]’

“This view of the statute does not eliminate all potential for divergent decisions; on the other hand, it allows for individual, cultural, or generational differences in what areas are deemed intimate.”

Id. at 463. In the present case, undisputed evidence supports the conclusion that the subjective element of the test was met; the victim testified that she regarded defendant’s actions in putting his mouth on her neck as touching an intimate part. The question therefore resolves to whether defendant knew or should have known that she regarded her neck as an intimate part in the circumstances. The court properly instructed the jury, telling them,

“In order to find that a body part is intimate, you must find beyond a reasonable doubt that [the victim] regarded the part touched as intimate and either: One, the defendant knew that [the victim] regarded that part as intimate; or two, any reasonable person would know that the part touched is intimate.”

The jury returned a verdict of guilty. We must accept that finding unless we “decide that no reasonable jury could find a particular part of the body [here, the neck] to be objectively ‘intimate.'” Id. at 463.

Or, if you want to see another interesting application of the “intimate parts” language in the sex abuse statutes, check out State v. Rodriguez in which a poor 25 y.o. youth counselor got a mandatory prison sentence for hugging a kid (in a way so her breasts touched the 13 y.o. victim). She is still in prison.

On February 14, 2005, a staff member named Villalobos saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room. The victim, who had since turned 13, was sitting on a chair. Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts. Villalobos crossed the room and pointed defendant and the victim out to Malunay, another staff member, who had his back to them. Malunay turned and saw defendant run her hands along the victim’s face and through his hair while the back of his head was against her breasts. The contact lasted approximately one minute.

Villalobos later reported the incident to his supervisor, and the police were notified. Defendant was eventually charged with first-degree sexual abuse based on the incident.

Hope that helps.