All sides worry about fallout from sex case in small town

by: COURTESY PHOTO - Dusty Brown sports his lettermans jacket in his senior photo in last years yearbook.A year after sparking cheers for his skill as a star, three-sport athlete at Gaston High School, Dusty Brown is sparking whispers and concern in this town of 600.

Brown, now 19 and a freshman at Western Oregon University, has been charged with five counts of rape in the third degree and one count of sex abuse in the second degree.

“It’s pretty mind-boggling,” said Gaston High School Principal Mike Durbin, who knew nothing of the alleged behavior until he was contacted by Washington County detectives a few months ago.

Both the rape and sex abuse charges are Class C felonies with a maximum punishment of five years in prison, although judges have discretion to deliver a lighter sentence. A Rape 3 conviction formerly required registration as a sex offender, but judges now have the authority to lift that requirement.

It’s a case that raises questions about brain maturity, Oregon law, sex education and the ambiguous boundaries of sexual conduct between teens — many of whom are just beginning to experiment with their sexuality.

Brown was removed from his mother's care due to physical and emotional abuse the summer before his freshman year of high school, according to Brown's legal guardian, Russ Morgan. Morgan and his wife provided a foster home for Brown and became his guardians in 2009.

Sources describe Brown as a “nice kid” who shone on the football field, basketball court and baseball diamond during his years at Gaston High. But some now wonder if he used that image to take advantage of younger girls. Others wonder if the girls should be held more responsible than they are.

Brown wonders about his future.

“I'm scared people won't like me because they will automatically judge me for what happened,” he said. “I mean, I had a great life going for me. And now my life is ruined.”

Photos spur questions

According to Paul Maloney, the deputy district attorney handling the case, Brown “confessed to sex and oral sex on at least five occasions with victims, one 14, one 15.”

Brown said the five rape charges are related to a single girl and that the charges are statutory, meaning they are based on the girl’s younger age rather than any force used during the incidents.

He also indicated most of the incidents occurred last year, when he was still in high school.

The girl’s mother declined to talk about the case.

According to Washington County Sheriff’s Office records, questions about Brown’s behavior first came to light when an adult contacted the sheriff’s office Nov. 28 to report inappropriate photos that had been exchanged a few weeks earlier between Brown and a younger girl.

Child abuse detectives contacted Durbin, who agreed to set up interviews with a number of girls. Durbin said he contacted five families whose daughters then spoke with detectives in the carriage house next to the district office.

Ultimately detectives interviewed more than 15 girls, many of whom had shared inappropriate photos back and forth with Brown, some several years ago.

“They weren’t total naked pictures,” said one mother, who asked not to be named out of concern for her daughter. “He had underwear on and my daughter had her bra and underwear on.”

But she said her daughter felt bad about it and hadn’t wanted to do it.

“Being a young girl and having an older boy pay attention to you, I think she was flattered,” the mother said, especially when the boy was “the three-sport greatest athlete Gaston has seen in years.”

December search warrant

Deputies showed up at Brown’s Olson Road home with a search warrant at 9:17 a.m. on Thursday, Dec. 21, four days before Christmas, and seized electronic devices.

An extensive investigation ended up centering on three alleged victims, including two that sheriff’s office reports say had physical contact with Brown and a third connected to the photo-sharing,

A child abuse detective called Brown Jan. 7 and gave him the choice of having deputies come arrest him or of turning himself in. Brown agreed to turn himself in and showed up at the Washington County Jail in Hillsboro Jan. 11, where he was booked and charged.

Bail was set at $20,000 and Brown paid the 10 percent ($2,000) required for release from jail out of his college funds.

Brown returned to court for a formal arraignment Jan. 23. A grand jury will consider his case between now and Feb. 22, when he is scheduled to have a preliminary hearing at 2 p.m. and when the current charges could be modified or updated.

Last Friday, Brown appeared in Washington County’s Law Enforcement Center courtroom with his attorney, Jennifer Robins, to request modification of his release conditions, which required him to avoid contact with minors.

Judge Gayle Nachtigal modified the conditions to allow Brown to see his younger brothers and his girlfriend after she turns 18 this week.

With more court dates coming up, Brown says he’s scared. “I’m not a rapist or a sex offender, but that’s what everyone’s going to see me as,” he said.

To contact the sheriff’s office with further information about this case, call 503-846-2500.

Oregon laws largely unknown

At almost any high school, seniors and freshmen mix easily in extracurricular settings such as sports, music and drama. So the occasional relationship between a 17-year-old and 14-year-old is no big surprise.

If they have consensual sex, however, it’s rape—at least in the eyes of Oregon law. And that, to many people, is a surprise.

“I didn’t know that,” said Marc Roche, who teaches a sex-education unit as part of the required Health 1 curriculum for freshmen at Forest Grove High School.

The three-week unit says nothing about the fact that consensual sex between two teens—no matter the age—is legally considered rape if one teen is more than three years older than the other. That information comes up—briefly, according to one student—in Health 2, junior year.

But Roche isn’t the only one who didn’t know about the law. Few people contacted for this story were aware of it, including parents of teens connected to the Dusty Brown case in Gaston. Brown himself said he didn’t know about it.

Technically, sexual intercourse—or “deviant” behavior such as oral or anal sex—between any teens under the age of 18 is illegal in Oregon, according to the Oregon Criminal Code.

“The law says a child under the age of 18 does not have the capacity to consent to those acts,” said Paul Maloney, the deputy district attorney who prosecutes sex cases involving teens.

It’s a seemingly arcane law, given that about half of all American high school students have had sex (47 percent in 2011, according to the national Centers for Disease Control).

In an apparent nod to reality, Oregon law also says a less-than-three-years age difference is a legitimate defense against prosecution of teens for having consensual sex, Maloney said--even if one of the teens is 18 or older and legally considered an adult. That way, two sexually active 17-year-olds don't suddenly have to rein in their behavior when one has a birthday.

But there are some arbitrary aspects to the Oregon laws governing criminal sexual behavior. Oregon is one of only 11 states in the country, for example, where the age of consent is 18. In nine others it’s 17. In the rest, including Washington, it’s 16. In some Mexican states, it’s as young as 12.

Even within Oregon, the law appears to have a double standard on brain maturity for 17-year-olds, who are considered incompetent to consent if they are the younger partner in a sexual pair separated by more than three years—but not if they are the older partner.

And of course the teens in each relationship are different—some more mature, naïve, or devious than others. These factors can be considered by a prosecutor when deciding whether to pursue a more-than-three-years case, said Sara Snyder, a Multnomah County defense attorney who has handled cases between couples where the three-year age difference mattered.

"We always have discretion," Maloney said. "We make case by case decisions."

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