Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute. Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times. When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand. Each of those touchings was unlawful because a jury in Rodriguez's case and a judge in Buck's case found that they had been for a sexual purpose -- a fact that brought the physical contact within the definition of first-degree sexual abuse. . . . before the passage of Measure 11, a person convicted of first-degree sexual abuse would have received a guidelines sentence that took into account criminal history and other aggravating or mitigating circumstances. The presumptive guidelines sentence for a defendant with no prior convictions would have been 16 to 18 months in prison.
Neither child had any prior criminal history. The convictions themselves were affirmed on appeal to both the state court of appeals and the state supreme court. But:
First-degree sexual abuse carries a mandatory sentence of six years and three months (75 months) in prison, under Ballot Measure 11 (1994). In each of these cases, however, the trial judge determined that the mandatory sentence was not "proportioned to the offense" committed by the defendant and therefore was unconstitutional under Article I, section 16. The trial courts imposed shorter sentences -- 16 months in the case of Rodriguez and 17 months in the case of Buck. The state appealed the trial courts' sentencing rulings, and Rodriguez and Buck cross-appealed their convictions. The Court of Appeals affirmed the convictions, but agreed with the state that the trial courts should have imposed mandatory 75-month sentences. . . . Defendants filed petitions for review, which we allowed. For the reasons that follow, we affirm defendants' convictions. However, we reverse the decisions of the Court of Appeals as to sentencing and affirm the sentences imposed by the trial courts. We conclude that the imposition of the mandatory 75-month sentence for first-degree sexual abuse, as applied to the facts of Rodriguez's and Buck's offenses, would violate the constitutional requirement that the penalty be proportioned to the offense.
This keeps in place, instead, the 16 and 17 month sentences imposed. However, one suspect that both children, due to their felony sex offender records, will face all of the collateral consequences of these convictions.
It isn't obvious why these cases were handled through the criminal justice system, why prosecutors decided to prosecute these cases with these charges, or why prosecutors defended the sentences entered on appeal. One suspects that this is a case where the ball got rolling, and no one took personal responsibility for the common sense of what they were doing. The defendants probably fought the charges because their culpability for this serious a crime was in doubt, and because a conviction of any sex offense carries so many collateral consequences.
It isn't surprising, however, that a ballot measure relating to criminal justice would exclude relevant nuances. The truth of the matter is that this kind of conduct shouldn't be a serious felony at all, shouldn't be outside the juvenile justice system, and in context, is not conduct that most people would consider rising to the level of a criminal offense. It is a classic case where a statutory rape offense without a "Romeo and Juliet clause" targets cases that shouldn't be criminalized at all.
Oregon's governor should seriously consider issuing a pardon in this case.
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