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I have no idea whether a 17-year-old can legally consent to anything; it’s not really addressed in the statutes, and no reported case that I know of has considered whether, for example, a 17-year-old is legally able to consent to the violence that occurs during a high-school football game.
Oregon’s sex-crime laws, which appear with other “person” crimes in Chapter 163 of the Oregon Revised Statutes are a bewildering mess.
In addition to rape and sodomy (sex without consent) there is sexual abuse (sexual touching without consent) unlawful sexual penetration (just what it sounds like) child-pornography offenses, and contributing to the sexual delinquency of a minor. Rape and sodomy are of varying degrees of seriousness depending on the victim’s age and whether there was force, but they create an effective age of consent of 16, and it is a defense if the defendant is less than three years older than the victim.
So, if a 15-year old and a 13-year-old have sex, and the 13-year-old is willing, it’s not rape.
The 13-year-old never technically ‘consents,’ because someone younger than 18 lacks the legal ability to consent to sexual activity.
In some cases the prosecutor was right, I suppose, but in some the prosecutor was wrong, and the statute really is on the books, letting the prosecutor make that choice.
The Oregon Supreme Court had an opportunity recently to clear up part of this mess.
The sex-offense statutes suggest a difference between a factual lack of consent, as in the case of a violent rape, and a legal lack of consent, by someone underage but otherwise willing. Ofodrinwa, the defendant, who was 21, was accused of sexual abuse in the second degree for having sex with his 16-year-old girlfriend.
But sex between a 17-year-old, with a birthday next week, and a 18-year-old, with a birthday next week, is contributing to the sexual delinquency of a minor, ORS 163.435.
That is a sex crime carrying lifetime sex-offense registration, and it is surely committed every day by ordinary high-school kids.