concurring in part, dissenting in part.
I agree with the majority that defendant’s conviction should be affirmed. However, I disagree with the majority’s conclusion with regard to the constitutionality of the 75-month mandatory minimum sentence imposed in this case. In my view, the actual application of the nonexclusive factors established in State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009), rather than simple fact matching, compels the conclusion that, as applied to this defendant, the 75-month mandatory minimum sentence is unconstitutionally disproportionate in violation of Article I, section 16, of the Oregon Constitution.1
It is undisputed that any form of sexual abuse of a child or an adult is an extremely serious criminal act which merits imprisonment.2 That said, the court made it clear in Rodriguez/Buck that “the proportionality requirement of Article I, section 16, is not merely aspirational, but was intended to protect Oregon’s citizens against penalties that are disproportionate to their offenses” and that, “when the facts of a particular case demonstrate that the application of the statute to those unique facts would be unconstitutional, it is the obligation of this court to enforce the constitutional provision—our fundamental law—rather than the statute.” Id. at 80. It is in that context that I apply the Rodriguez/ Buck factors in this case.
In determining that imposition of the 75-month mandatory minimum prison sentence in Rodriguez/Buck would result in a constitutionally disproportionate sentence, the court considered three nonexclusive factors: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” Id. at 58.
*449Like the defendants in Rodriguez/Buck, defendant was convicted of first-degree sexual abuse under ORS 163.427(1)(a)(A), which the court described in Rodriguez/Buck as a criminal statute that “covers a broad range of activity, criminalizing a variety of forms and intensity of conduct.” 347 Or at 61. In Rodriguez /Buck, the court stated that it had reviewed “all the reported first-degree sexual abuse cases decided since the effective date of the 75-month mandatory sentence, and * * * we are unable to find any case in which the contact upon which the convictions were based was as limited as in these cases.” Id. at 72. According to the court, the more typical cases included State v. Foreman, 212 Or App 109, 157 P3d 228 (2007) (defendant touched three-year-old victim’s vagina with his hands and penis); State v. Reed, 173 Or App 185, 21 P3d 137, rev den, 332 Or 559 (2001) (defendant rubbed his penis against six-year-old victim, took the victim’s clothes off, and rubbed his penis all over her body); State v. Cockrell, 174 Or App 442, 26 P3d 169, rev den, 332 Or 656 (2001) (defendant repeatedly rubbed the crotch of his 11-year-old niece); and State v. Acker, 175 Or App 145, 27 P3d 1071 (2001), rev den, 333 Or 260 (2002) (defendant furnished alcohol to his stepdaughter’s 13-year-old friend and touched her breasts and buttocks). Rodriguez/Buck, 347 Or at 72.
The court described the defendants’ conduct in Rodriguez/Buck (back of victim’s head came in contact with Rodriguez’s clothed breasts; Buck’s hand remained on victim’s clothed buttocks; and Buck later wiped dirt off the back of victim’s shorts) as “insufficiently grave” and “less severe than the conduct in the vast majority of * * * other reported first-degree sexual abuse cases since Measure 11 was passed.” Id. at 74. To determine where to place a defendant’s conduct on a first-degree sexual abuse severity scale, Rodriguez/Buck established that a court may consider “the specific circumstances and facts of the defendant’s conduct that come within the statutory definition of the offense, as well as other case-specific factors such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim.” Id. at 62.
In that regard, the state appears to argue, and the majority agrees, that defendant’s conduct does not fall on the *450lower end of any such scale because the victim was 11 years old, defendant used the victim’s hand to manually stimulate his bare penis, defendant pushed his penis against the victim’s clothed crotch and buttocks area, and defendant was a family friend. I agree that the physical contact between defendant and the victim differs from that of the defendants Rodriguez and Buck and their victims, in that, here, the victim’s hand touched defendant’s bare penis and defendant rubbed his penis against the victim’s clothed crotch and buttocks area. There are, however, similarities. In Rodriguez/Buck, the defendant Rodriguez was a Hillsboro Boys & Girls Club employee who worked with at-risk youth, was in a position of trust with the 13-year-old victim, and breached that trust when she ran her hands along the victim’s face and hair as she rubbed his head against her clothed breasts. Id. at 50-51. Yet the court described Rodriguez’s conduct as “insufficiently grave” and “less severe than the conduct in the vast majority of * * * cases.” Id. at 74. In doing so, the court pointed out that the first-degree sexual abuse statute includes conduct such as causing a person under the age of 18 to engage in bestiality (ORS 163.427(1)(b)) and sexual contact as a result of forcible compulsion by the wrongdoer (ORS 163.427(1)(a)(B))—resulting in the same 75-month mandatory minimum sentence. Id. at 71. Here, although the victim’s hand did touch defendant’s bare penis, the breach of trust that the state describes in this case is not of the same magnitude as what occurred in Rodriguez/Buck.
Utilizing the guidance provided by the court in Rodriguez/Buck and applying it here, I conclude that, although defendant’s conduct differs from the conduct at issue in Rodriguez/Buck, defendant’s conduct is, nevertheless, “less severe than the conduct in the vast majority of *** cases.” Id. at 74. The contact was brief and occurred only once, the victim’s hand was placed on defendant’s penis and rubbed on defendant’s penis, the victim was clothed, and any contact with the victim’s intimate body parts occurred through her clothes. There was no penetration and no physical injury. I conclude that because defendant’s conduct falls somewhere on the lower end of a first-degree sexual abuse severity scale, the mandatory 75-month prison sentence imposed here has some initial indicia of disproportionality.
*451I turn to the second factor. In comparing the penalty imposed (mandatory 75-month prison sentence) with the penalties for related offenses, the court in Rodriguez/ Buck commented that, when “the penalties for more ‘serious’ crimes than the crime at issue result in less severe sentences, that is an indication that the challenged penalty may be disproportionate.” Id. at 63.
Here, having placed the victim’s hand on his penis and having briefly contacted the victim’s intimate parts through her clothes requires the same lengthy mandatory minimum sentence as the much more serious crimes identified in Rodriguez/Buck as “second-degree sodomy, second-degree rape, and second-degree sexual penetration.” Id. at 75. As to the second factor (comparing the penalties imposed for other related offenses), the state’s only assertion—and the one accepted by the majority—is that “defendant’s conduct was far more egregious than the conduct at issue in Rodriguez/Buck” because defendant “subjected a young child to skin-to-skin contact with his penis,” and, therefore, the sentence imposed here is not disproportionate. However, the fact that defendant’s physical contact with victim is different than what occurred in Rodriguez! Buck is not completely responsive to the concern that is integral to the second factor analysis. In other words, neither the state nor the majority explains why the physical contact that occurred here, which does not involve any form of penetration or oral contact with the victim’s or defendant’s genitals, is not less grave and less severe than the crimes of second-degree sexual penetration, second-degree rape, and second-degree sodomy, all of which require the same 75-month mandatory minimum sentence. Moreover, nothing in Rodriguez/Buck provides any indication that any or every form of skin-to-skin contact automatically renders the imposition of the 75-month mandatory minimum prison sentence constitutionally proportional as a matter of law— which the majority apparently assumes as part of its fact matching in this case. And, as described above, the physical contact that occurred in this case is less grave and less severe than the cases identified by the court in Rodriguez/Buck as “more typical” of first-degree sexual abuse. Id. at 72.
*452Like the court in Rodriguez/Buck, I conclude that reasonable people would not believe that this defendant’s sentence (more than twice as long as the maximum 36-month sentence that could be imposed under the guidelines before Measure 11) is proportioned to his offense, in light of the other substantially more egregious conduct described in other related statutes and subject to the same mandatory minimum 75-month sentence.
Finally, I address the criminal-history factor. With regard to a defendant’s criminal history, the court in Rodriguez/Buck observed that in the “more common first-degree sexual abuse cases (at least those that have resulted in reported opinions), the contact is not only far more physically invasive and sexually charged, but it has occurred multiple times, rather than only once.” Id. at 78. In support of the court’s observation regarding the “more common” first-degree sexual abuse cases, the court cited State v. Sullivan, 217 Or App 208, 174 P3d 1095 (2007), rev den, 344 Or 539 (2008), in which the defendant had been convicted of two counts of first-degree sexual abuse for abusing the victim over a four-year period, and State v. Rhodes, 149 Or App 118, 941 P2d 1072 (1997), rev den, 326 Or 390 (1998), a case in which a 15-year-old defendant, although only charged with one count of first-degree sexual abuse, had touched his nine-year-old sister’s vagina beneath her clothes on more than 20 separate occasions. 347 Or at 78. According to the court, a defendant’s criminal history is relevant “because a defendant who previously has been convicted of and served sentences for other crimes has demonstrated, by committing additional crimes, that the previously imposed sentences were insufficient to prevent the defendant from returning to his or her criminal behavior.” Id. at 77.
In emphasizing the importance of the criminal history factor, the court also stated that “[traditional understandings of proportionality *** require us to consider whether a defendant is a repeat offender by considering previous criminal convictions and whether there is evidence of multiple instances of uncharged wrongful conduct.” Id. at 78. In applying that factor in Rodriguez/Buck, the court stated, “[T]he absence of any criminal convictions and the single occurrence of the wrongful conduct support the conclusion *453that a 75-month sentence is unconstitutionally disproportionate to the offenses committed.” Id.
In rejecting defendant’s proportionality argument, the majority relies primarily on State v. Camacho-Garcia, 268 Or App 75, 341 P3d 888 (2014), rev den, 357 Or 164 (2015). In Camacho-Garcia, the defendant was convicted of one count of sexual abuse, and he argued that the 75-month mandatory minimum prison sentence was disproportionate to his offense. Id. at 76-77. Like the defendants in Rodriguez/Buck, Camacho-Garcia did not have a criminal history. Id. at 77. However, this court affirmed the mandatory minimum sentence, concluding that the defendant’s lack of criminal history was entitled to little or no weight in the Rodriguez/Buck three-factor analysis, because the defendant had “admitted to two, escalating incidents that constitute sexual abuse.” Id. at 83-84.
Here, defendant has no prior criminal history and the contact occurred only once. Application of the Rodriguez/Buck “criminal history” factor to the facts and circumstances of this case weighs, as it did in Rodriguez/Buck, toward a conclusion of disproportionality. Unfortunately, the majority ignores the guidance provided by Rodriguez/Buck and refuses to give any weight to defendant’s lack of any criminal history.
As described above, Rodriguez/Buck holds that, in order to determine whether the imposition of a certain criminal penalty “shockfs] the moral sense” of reasonable people, a court must consider three nonexclusive factors. 347 Or at 78-79. I have applied those factors to the facts and circumstances of this case: (1) the relationship between the severity of the penalty and the gravity of defendant’s offense—although the physical contact that occurred here can be considered more invasive or intense (although lacking the defendant Rodriguez’s egregious breach of public trust) than that which occurred in Rodriguez/Buck, it nevertheless falls oh the lower end of any first-degree sexual abuse severity scale; (2) the penalties for other related crimes—the same 75-month mandatory minimum sentence is imposed for crimes involving penetration or oral genital contact, though, here, any form of penetration or oral genital contact *454is absent; and (3) a defendant’s criminal history—the contact occurred only once and defendant has no prior criminal history. Having considered all three of the Rodriguez/ Buck factors, I conclude that this case presents another rare circumstance in which the statutorily prescribed penalty is so disproportionate to the offense committed by this defendant that it shocks the moral sense of reasonable people. Accordingly, I conclude that the 75-month mandatory minimum prison sentence, as applied to this defendant, violates Article I, section 16.
Accordingly, I respectfully concur in part and dissent in part.
Article I, section 16, provides, in part, that “all penalties shall be proportioned to the offense.”
Before Measure 11, the sentencing guidelines established, as the presumptive sentence for first-degree sexual abuse, a prison term of 16 to 18 months. A maximum upward departure from the presumptive guideline sentence, for a person with no prior convictions, would result in a sentence of 36 months—compared to the 75-month sentence imposed here. Rodriguez/Buck, 347 Or at 73.