72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1702
A-Engrossed
House Bill 2770
Ordered by the House April 2
Including House Amendments dated April 2
Sponsored by Representatives PROZANSKI, BACKLUND; Representatives
HUNT, NELSON (at the request of Attorney General's Sexual
Assault Task Force, Oregon Alliance to End Violence Against
Women)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Creates crime of strangulation. Punishes by maximum of one
year's imprisonment, $5,000 fine, or both. Enhances penalties
under certain circumstances.
A BILL FOR AN ACT
Relating to crime; creating new provisions; and amending ORS
40.355, 124.105, 135.703, 135.951, 166.470 and 167.320.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2003 Act is added to and made
a part of ORS 163.160 to 163.208. + }
SECTION 2. { + (1) A person commits the crime of strangulation
if the person knowingly impedes the normal breathing or
circulation of the blood of another person by:
(a) Applying pressure on the throat or neck of the other
person; or
(b) Blocking the nose or mouth of the other person.
(2) Subsection (1) of this section does not apply to legitimate
medical or dental procedures or good faith practices of a
religious belief.
(3) Strangulation is a Class A misdemeanor.
(4) Notwithstanding subsection (3) of this section,
strangulation is a Class C felony if:
(a) The crime is committed in the immediate presence of, or is
witnessed by, the person's or the victim's minor child or
stepchild or a minor child residing within the household of the
person or victim;
(b) The person used, attempted to use or threatened to use a
dangerous weapon while committing the crime;
(c) The person caused physical injury to the victim while
committing the crime;
(d) The person has been convicted previously of violating this
section;
(e) The person has been convicted previously of violating ORS
163.160, 163.165, 163.175, 163.185 or 163.190 and the victim in
the previous conviction is the same person who is the victim of
the current conviction; or
(f) The person has at least three previous convictions of any
combination of ORS 163.160, 163.165, 163.175, 163.185 or 163.190
or of equivalent crimes in other jurisdictions. + }
SECTION 3. ORS 40.355 is amended to read:
40.355. (1) For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime
shall be admitted if elicited from the witness or established by
public record, but only if the crime:
(a) Was punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted; or
(b) Involved false statement or dishonesty.
(2)(a) If a defendant is charged with one or more of the crimes
listed in paragraph (b) of this subsection, and the defendant is
a witness, evidence that the defendant has been convicted of
committing one or more of the following crimes against a family
or household member, as defined in ORS 135.230, may be elicited
from the defendant, or established by public record, and admitted
into evidence for the purpose of attacking the credibility of the
defendant:
(A) Assault in the fourth degree under ORS 163.160.
(B) Menacing under ORS 163.190.
(C) Harassment under ORS 166.065.
(D) Attempted assault in the fourth degree under ORS 163.160
(1).
(E) Attempted assault in the fourth degree under ORS 163.160
(3).
{ + (F) Strangulation under section 2 of this 2003 Act. + }
(b) Evidence may be admitted into evidence for the purpose of
attacking the credibility of a defendant under the provisions of
this subsection only if the defendant is charged with committing
one or more of the following crimes against a family or household
member, as defined in ORS 135.230:
(A) Aggravated murder under ORS 163.095.
(B) Murder under ORS 163.115.
(C) Manslaughter in the first degree under ORS 163.118.
(D) Manslaughter in the second degree under ORS 163.125.
(E) Assault in the first degree under ORS 163.185.
(F) Assault in the second degree under ORS 163.175.
(G) Assault in the third degree under ORS 163.165.
(H) Assault in the fourth degree under ORS 163.160.
(I) Rape in the first degree under ORS 163.375 (1)(a).
(J) Sodomy in the first degree under ORS 163.405 (1)(a).
(K) Unlawful sexual penetration in the first degree under ORS
163.411 (1)(a).
(L) Sexual abuse in the first degree under ORS 163.427
(1)(a)(B).
(M) Kidnapping in the first degree under ORS 163.235.
(N) Kidnapping in the second degree under ORS 163.225.
(O) Burglary in the first degree under ORS 164.225.
(P) Coercion under ORS 163.275.
(Q) Stalking under ORS 163.732.
(R) Violating a court's stalking protective order under ORS
163.750.
(S) Menacing under ORS 163.190.
(T) Harassment under ORS 166.065.
{ + (U) Strangulation under section 2 of this 2003 Act. + }
{ - (U) - } { + (V) + } Attempting to commit a crime listed
in this paragraph.
(3) Evidence of a conviction under this section is not
admissible if:
(a) A period of more than 15 years has elapsed since the date
of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later
date; or
(b) The conviction has been expunged by pardon, reversed, set
aside or otherwise rendered nugatory.
(4) When the credibility of a witness is attacked by evidence
that the witness has been convicted of a crime, the witness shall
be allowed to explain briefly the circumstances of the crime or
former conviction; once the witness explains the circumstances,
the opposing side shall have the opportunity to rebut the
explanation.
(5) The pendency of an appeal therefrom does not render
evidence of a conviction inadmissible. Evidence of the pendency
of an appeal is admissible.
(6) An adjudication by a juvenile court that a child is within
its jurisdiction is not a conviction of a crime.
(7) A conviction of any of the statutory counterparts of
offenses designated as violations as described in ORS 153.008 may
not be used to impeach the character of a witness in any criminal
or civil action or proceeding.
SECTION 4. ORS 124.105 is amended to read:
124.105. (1) An action may be brought under ORS 124.100 for
physical abuse if the defendant engaged in conduct against an
elderly or incapacitated person that would constitute any of the
following:
(a) Assault, under the provisions of ORS 163.160, 163.165,
163.175 and 163.185.
(b) Menacing, under the provisions of ORS 163.190.
(c) Recklessly endangering another person, under the provisions
of ORS 163.195.
(d) Criminal mistreatment, under the provisions of ORS 163.200
and 163.205.
(e) Rape, under the provisions of ORS 163.355, 163.365 and
163.375.
(f) Sodomy, under the provisions of ORS 163.385, 163.395 and
163.405.
(g) Unlawful sexual penetration, under the provisions of ORS
163.408 and 163.411.
(h) Sexual abuse, under the provisions of ORS 163.415, 163.425
and 163.427.
{ + (i) Strangulation, under section 2 of this 2003 Act. + }
(2) An action may be brought under ORS 124.100 for physical
abuse if the defendant used any unreasonable physical constraint
on the plaintiff or subjected the plaintiff to prolonged or
continued deprivation of food or water.
(3) An action may be brought under ORS 124.100 for physical
abuse if the defendant used a physical or chemical restraint, or
psychotropic medication on the plaintiff without an order from a
physician licensed in the State of Oregon or under any of the
following conditions:
(a) For the purpose of punishing the elderly or incapacitated
person.
(b) For any purpose not consistent with the purposes authorized
by a physician.
(c) For a period significantly beyond that for which the
restraint or medication was authorized by a physician.
SECTION 5. ORS 135.703 is amended to read:
135.703. (1) When a defendant is charged with a crime
punishable as a misdemeanor for which the person injured by the
act constituting the crime has a remedy by a civil action, the
crime may be compromised, as provided in ORS 135.705, except when
it was committed:
(a) By or upon a peace officer while in the execution of the
duties of office;
(b) Riotously;
(c) With an intent to commit a crime punishable only as a
felony; or
(d) By one family or household member upon another family or
household member, as defined in ORS 107.705, or by a person upon
an elderly or disabled person as defined in ORS 124.005 and the
crime was:
(A) Assault in the fourth degree under ORS 163.160;
(B) Assault in the third degree under ORS 163.165;
(C) Menacing under ORS 163.190;
(D) Recklessly endangering another person under ORS 163.195;
{ - or - }
(E) Harassment under ORS 166.065 { + ; or
(F) Strangulation under section 2 of this 2003 Act + }.
(2) Notwithstanding subsection (1) of this section, when a
defendant is charged with violating ORS 811.700, the crime may be
compromised as provided in ORS 135.705.
SECTION 6. ORS 135.951 is amended to read:
135.951. (1) Law enforcement agencies, city attorneys and
district attorneys may consider the availability and likely
effectiveness of mediation in determining whether to process and
prosecute criminal charges. If it appears that mediation is in
the interests of justice and of benefit to the offender, victim
and community, the law enforcement agency, city attorney or
district attorney may propose mediation through a qualified
mediation program.
(2) In determining whether mediation is in the interests of
justice and of benefit to the offender, victim and community, the
law enforcement agency, city attorney or district attorney shall
consider, at a minimum, the following factors:
(a) The nature of the offense;
(b) Any special characteristics of the offender or the victim;
(c) Whether the offender has previously participated in
mediation;
(d) Whether it is probable that the offender will cooperate
with and benefit from mediation;
(e) The recommendations of the victim;
(f) Whether a qualified mediation program is available or may
be made available;
(g) The impact of mediation on the community;
(h) The recommendations of the involved law enforcement agency;
and
(i) Any mitigating circumstances.
(3) Mediation { - shall - } { + may + } not be used for:
(a) Disputes between family or household members, as defined in
ORS 107.705, that involve conduct that would constitute assault
under ORS 163.160, 163.165, 163.175 or 163.185 { + or
strangulation under section 2 of this 2003 Act + }; or
(b) Offenses that involve sex crimes, as defined in ORS
181.594.
SECTION 7. ORS 166.470 is amended to read:
166.470. (1) Unless relief has been granted under ORS 166.274,
18 U.S.C. 925(c) or the expunction laws of this state or an
equivalent law of another jurisdiction, { - no - } { + a + }
person { - shall - } { + may not + } intentionally sell,
deliver or otherwise transfer any firearm when the transferor
knows or reasonably should know that the recipient:
(a) Is under 18 years of age;
(b) Has been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony;
(c) Has any outstanding felony warrants for arrest;
(d) Is free on any form of pretrial release for a felony;
(e) Was committed to the Department of Human Services under ORS
426.130;
(f) After January 1, 1990, was found to be mentally ill and
subject to an order under ORS 426.130 that the person be
prohibited from purchasing or possessing a firearm as a result of
that mental illness; or
(g) Has been convicted of a misdemeanor involving violence or
found guilty, except for insanity under ORS 161.295, of a
misdemeanor involving violence within the previous four years. As
used in this paragraph, 'misdemeanor involving violence' means a
misdemeanor described in ORS 163.160, 163.190, 163.195 or 166.155
(1)(b) { + or section 2 of this 2003 Act + }.
(2) { - No - } { + A + } person { - shall - } { + may
not + } sell, deliver or otherwise transfer any firearm that the
person knows or reasonably should know is stolen.
(3) Subsection (1)(a) of this section does not prohibit:
(a) The parent or guardian, or another person with the consent
of the parent or guardian, of a minor from transferring to the
minor a firearm, other than a handgun; or
(b) The temporary transfer of any firearm to a minor for
hunting, target practice or any other lawful purpose.
(4) Violation of this section is a Class A misdemeanor.
SECTION 8. ORS 167.320 is amended to read:
167.320. (1) A person commits the crime of animal abuse in the
first degree if, except as otherwise authorized by law, the
person intentionally, knowingly or recklessly:
(a) Causes serious physical injury to an animal; or
(b) Cruelly causes the death of an animal.
(2) Any practice of good animal husbandry is not a violation of
this section.
(3) Animal abuse in the first degree is a Class A misdemeanor.
(4) Notwithstanding subsection (3) of this section, animal
abuse in the first degree is a Class C felony if:
(a) The person committing the animal abuse has previously been
convicted of two or more of the following offenses:
(A) Any offense under ORS 163.160, 163.165, 163.175 or 163.185
{ + or section 2 of this 2003 Act + } or the equivalent laws of
another jurisdiction, if the offense involved domestic violence
as defined in ORS 135.230 or the offense was committed against a
minor child; or
(B) Any offense under this section or ORS 167.322, or the
equivalent laws of another jurisdiction; or
(b) The person knowingly commits the animal abuse in the
immediate presence of a minor child. For purposes of this
paragraph, a minor child is in the immediate presence of animal
abuse if the abuse is seen or directly perceived in any other
manner by the minor child.
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