In any prosecution under ORS 163.355 (Rape in the third degree), 163.365 (Rape in the second degree), 163.385 (Sodomy in the third degree), 163.395 (Sodomy in the second degree), 163.415 (Sexual abuse in the third degree), 163.425 (Sexual abuse in the second degree), 163.427 (Sexual abuse in the first degree) or 163.435 (Contributing to the sexual delinquency of a minor) 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.
In any prosecution under ORS 163.408 (Unlawful sexual penetration in the second degree), when the object used to commit the unlawful sexual penetration was the hand or any part thereof of the actor and 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.
In any prosecution under ORS 163.445 (Sexual misconduct) 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 if the victim was at least 15 years of age at the time of the alleged offense. [1971 c.743 §108; 1991 c.386 §3; 1991 c.830 §4; 1999 c.626 §24; amendments by 1999 c.626 §45 repealed by 2001 c.884 §1]
Age difference of less than three years is not defense where victim does not give actual consent. State ex rel Juv. Dept. v. Kitt, 129 Or App 591, 879 P2d 1348 (1994)
Adult charged as accomplice or with inchoate crime does not obtain defense solely by reason that defense would be available to minor contemplated as having committed underlying conduct. State ex rel Juvenile Dept. v. Aragorn, 189 Or App 65, 73 P3d 939 (2003), Sup Ct review denied