United States District Court, D. OregonJul 2, 2001
Civil No. 00-1725-KI (D. Or. Jul. 2, 2001)

Civil No. 00-1725-KI.

July 2, 2001.

Peggy S. Foraker, Jennings Foraker, L.L.P., Gresham, Oregon, Attorney for Plaintiff.

Erich H. Hoffman, BOCCI HOFFMAN, Portland, Oregon Attorney for Defendant.


KING, Judge:

Before the court is the motion for partial summary judgment (#9) by plaintiff "Z." For the reasons set forth below, I grant in part and deny in part the motion.


Plaintiff alleges that she was raped by defendant Larry Worley. Defendant has plead guilty to Rape III in Oregon state court. At the time of the alleged rape, plaintiff was a minor and defendant was an adult. In this civil lawsuit, plaintiff asserts claims for battery and intentional infliction of emotional distress under Oregon law.

In response to the Complaint, defendant raised four affirmative defenses. The second and third affirmative defenses state, respectively, "Plaintiff communicated to defendant that plaintiff was over the age of 18 and capable of consent" and "Plaintiff willingly participated in the sexual conduct and had prior sexual experiences." Answer, ¶¶ 6-7. In her motion for partial summary judgment, plaintiff moves against defendant on these two affirmative defenses and in her favor on the battery claim.


Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S.Ct. 375 (1999).


Relying on Wilson v. Tobiassen, 97 Or. App. 527, 777 P.2d 1379, rev. denied, 308 Or. 500 (1989), plaintiff argues that, under Oregon law, a person under eighteen is incapable of consenting to a sexual act. As such, she argues that defendant's affirmative defenses, premised on plaintiff's consent, are baseless as a matter of law and that defendant has no defense to the battery claim.

In response, defendant concedes that plaintiff's inability to consent under Oregon law precludes him from avoiding liability on the battery claim. However, while he concedes liability on that claim, he argues that the issues of consent and his lack of knowledge of plaintiff's age are relevant and probative to plaintiff's claims for actual and punitive damages. As such, he resists summary judgment against the affirmative defenses discussed above.

In support of his argument, defendant argues that Wilson stands only for the proposition that consensual sexual conduct on the part of a minor does not bar a tort claim. He argues that the case does not address whether a jury, in arriving at a damages figure, may consider the minor's consensual participation.

The relevant text from Wilson is as follows:

Defendants next argue that the trial judge should have barred plaintiff's claim to the extent that his injuries resulted from consensual conduct. We disagree. Oregon's criminal code provides that a person under eighteen is incapable of consenting to a sexual act. ORS 163.315(1). Defendants argue that that incapacity to consent does not apply in civil cases. In Hough v. Iderhoff, 69 Or. 568, 139 P. 931 (1914), the underlying crime was carnal knowledge with a female under sixteen, and consent was held to be no defense to civil liability for the act. Similarly, Restatement (Second) Torts, § 892C(2) (1979), provides that,"[i]f conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of members of that class to the conduct is not effective to bar a tort action." Accordingly, we hold that a person's incapacity to consent under ORS 163.315(1) extends to civil cases.
Wilson, 97 Or. App. at 533-34.

I am inclined to agree with defendant's argument that the court in Wilson did not address the issue of whether consent can be relevant to damages even if it is not relevant to liability. I have also been unable to gain any additional guidance from my review of Oregon's criminal statutes relating to sexual offenses (ORS 163.305 — 163.467) and the portions of the Restatement relied upon by the Oregon Court of Appeals inWilson.

In the absence of some binding or persuasive authority, I am reluctant to rule, as a matter of law, that defendant's affirmative defenses are baseless under Oregon law. The motion for partial summary judgment is granted as to defendant's liability for battery and is otherwise denied.


The motion for partial summary judgment (#9) is granted in part and denied in part.