the guy was dating a girl who said she was 18 but turned out to be 16. Her parents had met him and allowed her to date him and spend nights with him. She recently got permission to spend the weekend with him ( her parents even spoke with his grandmother, where he lives, and verified their permission. The following morning the police arrive saying that the girl was reported as a runaway. After speaking to her the guy (who's 24 years old) is being arrested and charged with rape 3. My question is this. with no rape kit done on her, and no other real evidence other than word of mouth,( and clearly it was a consentual relationship that her parents knew of and allowed) if her parents wont drop the charges, how good of a defense does my son have, and if convicted, what is the usual sentence
Criminal Defense Attorney
This is likely a statutory rape charge. The age of consent in Oregon is 18. It is generally not a defense that the person lied about age or that parents gave permission. See: http://en.wikipedia.org/wiki/Ages_of_consent_in_North_America#Oregon
This is a serious charge even if a misdemeanor, it might result at some point in a sex offender registration requirement. Sentence depends on many factors, especially his own criminal history. But the first question is: Will he be convicted as charged?
He needs a criminal defense lawyer there, now.
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Estate Planning Attorney
As Mr. Kenyon mentioned, it is likely going to be a statutory rape charge, if it is prosecuted. The first thing that should be done is a consultation with a qualified criminal defense attorney. Don't delay on this, as you don't want this type of conviction on your friend's record.
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Criminal Defense Attorney
First, do not share any more facts with anyone, especially on line. Go and see a criminal defense attorney. After you have told him all of the facts, he will be the one to give you the best advice.
With that said, Rape in the Third Degree, in Oregon, requires that the alleged victim be under the age of 16. See ORS 163.355. Further, while gnorance of age is not a defense to a crime that requires an alleged victim to be under the age of sixteen, ORS 163.325(1), "[w]hen criminality depends on the childs being under a specified age other than 16, it is an affirmative defense for the defendant to prove that the defendant reasonably believed the child to be above the specified age at the time of the alleged offense." ORS 325(2).
This is just one of the defenses that your son's attorney will review and discuss with you when he has all of the facts. Speak to an attorney immediately. You can find one on AVVO, or through the Oregon State Bar's attorney referral service.
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Criminal Defense Attorney
Your son needs to speak to an experienced criminal defense attorney immediately. Defending a case like this is too complicated to discuss via this forum, and should conversations should occur in private.
Meanwhile, most of your information is not helpful: If she was a minor, she was legally incapable of giving consent. If her parents gave permission for him to date her, that's irrelevant. If the victim or her family doesn't want the charges to stick, that's also irrelevant. If your son spoke to the police and admitted that sex occurred, then the state can move forward without a rape kit or other DNA test.
The only thing that might be relevant (so far) is what your son reasonably believed about her age at the time sex occurred. If your son is charged with Rape 3, that would indicate that the victim was 15 at the time the sex occurred, in which case your son's ignorance of her age is not a defense. If she was 16 at the time the sex occurred, he should be charged with Sex Abuse 3, in which case your son does have a defense if he can offer evidence that shows that he reasonably believed her to be 18 at the time the sex occurred.
Remember, the emphasis is on *reasonable* - if it wasn't reasonable for him to believe she was 18, then he's likely to be found guilty. If this goes to a jury, there's a strong possibility that they're going to find such belief unreasonable. A 24 year old dating an 18 year old is just not likable, and mistaking an 15 or 16 year old as 18 is a hard sell, especially if the defendant is 24 and really should know better.
If found guilty he may have to serve jail time (or prison depending upon his criminal history), register as a sex offender for the rest of this life, complete formal probation including sex offender evaluation and treatment, obey all laws, not have any contact with minor females, not have any contact with the victim or her family, pay court fines and fees, etc.
This post is offered as general information and is not intended as legal advice. This information does not in of itself create any attorney-client relationship.
Act now and hire an experienced attorney for your son and do not post further information about this case on line. Good luck!
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