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A defendant recently appealed a judgment of conviction for second-degree sexual abuse, ORS 163.425, asserting that the trial court erred in instructing the jury that it could convict him of that crime if it found that he acted recklessly or negligently with respect to the victim’s lack of consent. State v. Haltom, 298 Or. App. 533, 534 (2019).
The Court of Appeals revisited State v. Wier, 260 Or. App. 341 (2013), in which it considered considered whether, for purposes of third-degree sexual abuse, the state was required to prove a knowing mental state with respect to the victim’s lack of consent, or whether “recklessness or criminal negligence would suffice.” Id. at 352, 317 P.3d 330. In that case, the Court had concluded that a victim’s lack of consent “is a circumstance element of the crime,” not a conduct element, so “the statute requires the state to prove only that a defendant acted, at a minimum, with criminal negligence with respect to lack of consent.” Unsurprisingly, the Haltom court found that the Wier analysis applied to second-degree sexual abuse as well.
In an interesting “concurrence,” Judge Aoyagi shared that, in his view, Wier had been “wrongly decided,” but was not so “plainly” wrong that he was prepared to call for its reversal.

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