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 1534
C-Engrossed
Senate Bill 308
Ordered by the House August 25
Including Senate Amendments dated April 23 and House Amendments
dated June 19 and August 25
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
District Attorneys Association)
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.
Prohibits disclosure of personal information of victims and
witnesses to defendants in criminal cases.
Specifies prosecution of certain crimes may be commenced within
eight years of commission of crime. Applies to offenses committed
before, on or after effective date of Act.
{ + Reduces number of findings court must make to impose
departure sentence for certain crimes.
Establishes life sentence without possibility of release or
parole for certain sex offenders.
Creates crime of unlawful operation of audiovisual recording
device. Punishes by maximum of one year imprisonment, $5,000
fine, or both. Enhances punishment for repeat offenders. + }
A BILL FOR AN ACT
Relating to crime; creating new provisions; amending ORS 131.125,
135.815, 137.712, 137.719 and 411.990; and providing for
criminal sentence reduction that requires approval by a
two-thirds majority.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 135.815 is amended to read:
135.815. (1) Except as otherwise provided in ORS 135.855 and
135.873, the district attorney shall disclose to a represented
defendant the following material and information within the
possession or control of the district attorney:
(a) The names and addresses of persons whom the district
attorney intends to call as witnesses at any stage of the trial,
together with their relevant written or recorded statements or
memoranda of any oral statements of such persons.
(b) Any written or recorded statements or memoranda of any oral
statements made by the defendant, or made by a codefendant if the
trial is to be a joint one.
(c) Any reports or statements of experts, made in connection
with the particular case, including results of physical or mental
examinations and of scientific tests, experiments or comparisons
which the district attorney intends to offer in evidence at the
trial.
(d) Any books, papers, documents, photographs or tangible
objects:
(A) Which the district attorney intends to offer in evidence at
the trial; or
(B) Which were obtained from or belong to the defendant.
(e) If actually known to the district attorney, any record of
prior criminal convictions of persons whom the district attorney
intends to call as witnesses at the trial; and the district
attorney shall make a good faith effort to determine if such
convictions have occurred.
(f) All prior convictions of the defendant known to the state
that would affect the determination of the defendant's criminal
history for sentencing under rules of the Oregon Criminal Justice
Commission.
(2)(a) If a defendant is not represented by a lawyer, the
district attorney shall disclose to the defendant all of the
information described in subsection (1) of this section except
for the { - addresses and telephone numbers - } { + personal
information + } of the victim and any witnesses.
(b) Notwithstanding paragraph (a) of this subsection, the
district attorney shall disclose the { - addresses and
telephone numbers - } { + personal information + } of the
victim and any witnesses if the trial court orders the
disclosure. A trial court shall order the district attorney to
disclose the { - addresses and telephone numbers - }
{ + personal information + } of the victim and any witnesses if
the trial court finds that:
(A) The defendant has requested the information; and
(B)(i) The victim or witness is a business or institution and
disclosure of the information would not represent a risk of harm
to the victim or witness; or
(ii) The need for the information cannot reasonably be met by
other means.
(3)(a) Unless authorized by the trial court to disclose the
information, a lawyer representing a defendant, or a
representative of the lawyer, may not disclose to the defendant
the { - address or telephone number - } { + personal
information + } of a victim or witness obtained under subsection
(1) of this section.
(b) The trial court shall order the lawyer, or representative
of the lawyer, to disclose to the defendant the { - address and
telephone number - } { + personal information + } of a victim
or witness if the court finds that:
(A) The defendant's lawyer has requested the district attorney
to disclose the information to the defendant;
(B) The district attorney has refused to disclose the
information to the defendant; and
(C) The need for the information cannot reasonably be met by
other means.
(4) As used in this section:
{ + (a) 'Personal information' means the information
specified in ORS 165.800 (4)(b) but does not include the name or
photograph of a victim or witness. + }
{ - (a) - } { + (b) + } 'Representative of the lawyer' has
the meaning given that term in ORS 40.225.
{ - (b) - } { + (c) + } 'Represented defendant' means a
defendant who is represented by a lawyer in a criminal action.
SECTION 2. ORS 131.125 is amended to read:
131.125. (1) A prosecution for aggravated murder, murder,
attempted murder or aggravated murder, conspiracy or solicitation
to commit aggravated murder or murder or any degree of
manslaughter may be commenced at any time after the commission of
the attempt, conspiracy or solicitation to commit aggravated
murder or murder, or the death of the person killed.
(2) A prosecution for any of the following felonies may be
commenced within six years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 24 years of age or within six
years after the offense is reported to a law enforcement agency
or other governmental agency, whichever occurs first:
(a) Criminal mistreatment in the first degree under ORS
163.205.
(b) Rape in the third degree under ORS 163.355.
(c) Rape in the second degree under ORS 163.365.
(d) Rape in the first degree under ORS 163.375.
(e) Sodomy in the third degree under ORS 163.385.
(f) Sodomy in the second degree under ORS 163.395.
(g) Sodomy in the first degree under ORS 163.405.
(h) Unlawful sexual penetration in the second degree under ORS
163.408.
(i) Unlawful sexual penetration in the first degree under ORS
163.411.
(j) Sexual abuse in the second degree under ORS 163.425.
(k) Sexual abuse in the first degree under ORS 163.427.
(L) Using a child in a display of sexual conduct under ORS
163.670.
(m) Encouraging child sexual abuse in the first degree under
ORS 163.684.
(n) Incest under ORS 163.525.
(o) Promoting prostitution under ORS 167.012.
(p) Compelling prostitution under ORS 167.017.
(3) A prosecution for any of the following misdemeanors may be
commenced within four years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 22 years of age or within four
years after the offense is reported to a law enforcement agency
or other governmental agency, whichever occurs first:
(a) Sexual abuse in the third degree under ORS 163.415.
(b) Furnishing obscene materials to minors under ORS 167.065.
(c) Sending obscene materials to minors under ORS 167.070.
(d) Exhibiting an obscene performance to a minor under ORS
167.075.
(e) Displaying obscene materials to minors under ORS 167.080.
(4) In the case of crimes described in subsection (2)(L) of
this section, the 'victim' is the child engaged in sexual
conduct. In the case of the crime described in subsection (2)(n)
of this section, the 'victim' is the party to the incest other
than the party being prosecuted. In the case of crimes described
in subsection (2)(o) and (p) of this section, the 'victim' is the
child whose acts of prostitution are promoted or compelled.
(5) A prosecution for arson in any degree may be commenced
within six years after the commission of the crime.
{ + (6) A prosecution for any of the following crimes may be
commenced within eight years after the commission of the crime:
(a) Unlawful tree spiking under ORS 164.877.
(b) Interference with agricultural research under ORS 164.889.
(c) Felony research and animal interference under ORS 167.312.
(d) Felony interference with livestock production under ORS
167.388. + }
{ - (6) - } { + (7) + } Except as provided in subsection
{ - (7) - } { + (8) + } of this section or as otherwise
expressly provided by law, prosecutions for other offenses must
be commenced within the following periods of limitations after
their commission:
(a) For any other felony, three years.
(b) For any misdemeanor, two years.
(c) For a violation, six months.
{ - (7) - } { + (8) + } If the period prescribed in
subsection { - (6) - } { + (7) + } of this section has
expired, a prosecution nevertheless may be commenced as follows:
(a) If the offense has as a material element either fraud or
the breach of a fiduciary obligation, prosecution may be
commenced within one year after discovery of the offense by an
aggrieved party or by a person who has a legal duty to represent
an aggrieved party and who is not a party to the offense, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years;
(b) If the offense is based upon misconduct in office by a
public officer or employee, prosecution may be commenced at any
time while the defendant is in public office or employment or
within two years thereafter, but in no case shall the period of
limitation otherwise applicable be extended by more than three
years; or
(c) If the offense is an invasion of personal privacy under ORS
163.700, prosecution may be commenced within one year after
discovery of the offense by the person aggrieved by the offense,
by a person who has a legal duty to represent the person
aggrieved by the offense or by a law enforcement agency, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years.
{ - (8) - } { + (9) + } Notwithstanding subsection (2) of
this section, a prosecution for rape in the first or second
degree or sodomy in the first or second degree may be commenced
within 12 years after the commission of the crime if the
defendant is identified after the period described in subsection
(2) of this section on the basis of DNA (deoxyribonucleic acid)
sample comparisons.
SECTION 3. ORS 411.990 is amended to read:
411.990. (1) Violation of ORS 411.320 or 411.335 is punishable,
upon conviction, by a fine of not more than $1,000 or by
imprisonment in the county jail for not more than 60 days, or by
both.
(2) Violation of any provision of ORS 411.630 or 411.840 is a
Class C felony which may be reduced to a Class A misdemeanor in
accordance with ORS 161.705.
(3) Violation of ORS 411.675 is a Class C felony.
(4) Criminal prosecution of violators of ORS 411.675 shall be
commenced in accordance with ORS 131.125 { - (6) and (7) - }
{ + (7) and (8) + }.
SECTION 4. { + The amendments to ORS 131.125 by section 2 of
this 2003 Act apply to offenses committed before, on or after the
effective date of this 2003 Act but do not revive a criminal
prosecution barred by the operation of ORS 131.125 before the
effective date of this 2003 Act. + }
SECTION 5. ORS 137.712 is amended to read:
137.712. (1)(a) Notwithstanding ORS 137.700 and 137.707, when a
person is convicted of manslaughter in the second degree as
defined in ORS 163.125, assault in the second degree as defined
in ORS 163.175 (1)(b), kidnapping in the second degree as defined
in ORS 163.225, rape in the second degree as defined in ORS
163.365, sodomy in the second degree as defined in ORS 163.395,
unlawful sexual penetration in the second degree as defined in
ORS 163.408, sexual abuse in the first degree as defined in ORS
163.427 (1)(a)(A) or robbery in the second degree as defined in
ORS 164.405, the court may impose a sentence according to the
rules of the Oregon Criminal Justice Commission that is less than
the minimum sentence that otherwise may be required by ORS
137.700 or 137.707 if the court, on the record at sentencing,
makes the findings set forth in subsection (2) of this section
and finds that a substantial and compelling reason under the
rules of the Oregon Criminal Justice Commission justifies the
lesser sentence. When the court imposes a sentence under this
subsection, the person is eligible for a reduction in the
sentence as provided in ORS 421.121 and any other statute.
(b) In order to make a dispositional departure under this
section, the court must make the following additional findings on
the record:
(A) There exists a substantial and compelling reason not relied
upon in paragraph (a) of this subsection;
(B) A sentence of probation will be more effective than a
prison term in reducing the risk of offender recidivism; and
(C) A sentence of probation will better serve to protect
society.
(2) A conviction is subject to subsection (1) of this section
only if the sentencing court finds on the record by a
preponderance of the evidence:
(a) If the conviction is for manslaughter in the second degree:
(A) That the defendant is the mother or father of the victim;
(B) That the death of the victim was the result of an injury or
illness that was not caused by the defendant;
(C) That the defendant treated the injury or illness solely by
spiritual treatment in accordance with the religious beliefs or
practices of the defendant and based on a good faith belief that
spiritual treatment would bring about the victim's recovery from
the injury or illness;
(D) That no other person previously under the defendant's care
has died or sustained significant physical injury as a result of
or despite the use of spiritual treatment, regardless of whether
the spiritual treatment was used alone or in conjunction with
medical care; and
(E) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section or for criminal
mistreatment in the second degree.
(b) If the conviction is for assault in the second degree:
(A) That the victim was not physically injured by means of a
deadly weapon;
(B) That the victim did not suffer a significant physical
injury; and
(C) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section.
(c) If the conviction is for kidnapping in the second degree:
(A) That the victim was at least 12 years of age at the time
the crime was committed; and
(B) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section.
(d) If the conviction is for robbery in the second degree:
(A) That the victim did not suffer a significant physical
injury;
(B) That, if the defendant represented by words or conduct that
the defendant was armed with a dangerous weapon, the
representation did not reasonably put the victim in fear of
imminent significant physical injury;
(C) That, if the defendant represented by words or conduct that
the defendant was armed with a deadly weapon, the representation
did not reasonably put the victim in fear of imminent physical
injury; and
(D) That the defendant does not have a previous conviction for
a crime listed in subsection (4) of this section.
(e) If the conviction is for rape in the second degree, sodomy
in the second degree or sexual abuse in the first degree:
(A) That the victim was at least 12 years of age, but under 14
years of age, at the time of the offense;
(B) That the defendant does not have a prior conviction for a
crime listed in subsection (4) of this section;
(C) That the defendant has not been previously found to be
within the jurisdiction of a juvenile court for an act that would
have been a felony sexual offense if the act had been committed
by an adult;
{ - (D) That the defendant was no more than five years older
than the victim at the time of the offense; - }
{ - (E) - } { + (D) + } That the offense did not involve
sexual contact with any minor other than the victim; and
{ - (F) - } { + (E) + } That the victim's lack of consent
was due solely to incapacity to consent by reason of being under
18 years of age at the time of the offense.
(f) If the conviction is for unlawful sexual penetration in the
second degree:
(A) That the victim was 12 years of age or older at the time of
the offense;
(B) That the defendant does not have a prior conviction for a
crime listed in subsection (4) of this section;
(C) That the defendant has not been previously found to be
within the jurisdiction of a juvenile court for an act that would
have been a felony sexual offense if the act had been committed
by an adult;
{ - (D) That the defendant was no more than five years older
than the victim at the time of the offense; - }
{ - (E) - } { + (D) + } That the offense did not involve
sexual contact with any minor other than the victim;
{ - (F) - } { + (E) + } That the victim's lack of consent
was due solely to incapacity to consent by reason of being under
18 years of age at the time of the offense; and
{ - (G) - } { + (F) + } That the object used to commit the
unlawful sexual penetration was the hand or any part thereof of
the defendant.
(3) In making the findings required by subsections (1) and (2)
of this section, the court may consider any evidence presented at
trial and may receive and consider any additional relevant
information offered by either party at sentencing.
(4) The crimes to which subsection (2)(a)(E), (b)(C), (c)(B),
(d)(D), (e)(B) and (f)(B) of this section refer are:
(a) A crime listed in ORS 137.700 (2) or 137.707 (4);
(b) Escape in the first degree, as defined in ORS 162.165;
(c) Aggravated murder, as defined in ORS 163.095;
(d) Criminally negligent homicide, as defined in ORS 163.145;
(e) Assault in the third degree, as defined in ORS 163.165;
(f) Criminal mistreatment in the first degree, as defined in
ORS 163.205 (1)(b)(A);
(g) Rape in the third degree, as defined in ORS 163.355;
(h) Sodomy in the third degree, as defined in ORS 163.385;
(i) Sexual abuse in the second degree, as defined in ORS
163.425;
(j) Stalking, as defined in ORS 163.732;
(k) Burglary in the first degree, as defined in ORS 164.225,
when it is classified as a person felony under the rules of the
Oregon Criminal Justice Commission;
(L) Arson in the first degree, as defined in ORS 164.325;
(m) Robbery in the third degree, as defined in ORS 164.395;
(n) Intimidation in the first degree, as defined in ORS
166.165;
(o) Promoting prostitution, as defined in ORS 167.012; and
(p) An attempt or solicitation to commit any Class A or B
felony listed in paragraphs (a) to (L) of this subsection.
(5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced
to probation under this section violates a condition of probation
by committing a new crime, the court shall revoke the probation
and impose the presumptive sentence of imprisonment under the
rules of the Oregon Criminal Justice Commission.
(6) As used in this section:
(a) 'Conviction' includes, but is not limited to:
(A) A juvenile court adjudication finding a person within the
court's jurisdiction under ORS 419C.005, if the person was at
least 15 years of age at the time the person committed the
offense that brought the person within the jurisdiction of the
juvenile court.
(B) A conviction in another jurisdiction for a crime that if
committed in this state would constitute a crime listed in
subsection (4) of this section.
(b) 'Previous conviction' means a conviction that was entered
prior to imposing sentence on the current crime provided that the
prior conviction is based on a crime committed in a separate
criminal episode. 'Previous conviction' does not include a
conviction for a Class C felony, including an attempt or
solicitation to commit a Class B felony, or a misdemeanor, unless
the conviction was entered within the 10-year period immediately
preceding the date on which the current crime was committed.
(c) 'Significant physical injury' means a physical injury that:
(A) Creates a risk of death that is not a remote risk;
(B) Causes a serious and temporary disfigurement;
(C) Causes a protracted disfigurement; or
(D) Causes a prolonged impairment of health or the function of
any bodily organ.
SECTION 6. { + (1) This section applies to prosecutions for
rape in the second degree as defined in ORS 163.365, sodomy in
the second degree as defined in ORS 163.395, unlawful sexual
penetration in the second degree as defined in ORS 163.408 or
sexual abuse in the first degree as defined in ORS 163.427
(1)(a)(A) if:
(a) The offense was committed on or after April 1, 1995, but
before the effective date of this 2003 Act; and
(b) A sentence has been imposed before the effective date of
this 2003 Act.
(2) Only upon joint written consent of the sentenced defendant
and the state, as represented by the district attorney of the
county of conviction, the court of conviction may entertain, in
accordance with ORS 137.712, a petition for a resentencing
hearing. The petition must allege facts sufficient to establish a
basis under ORS 137.712 for imposition of a sentence less than
the minimum sentence. The district attorney may file a response
either in support of or in opposition to the petition.
(3) When a petition is filed under subsection (2) of this
section, the sentencing court shall determine, based on the
defendant's petition and the response, if any, filed by the
district attorney, whether the defendant is eligible under ORS
137.712 for a sentence less than the minimum sentence and whether
a lesser sentence may be appropriate. If the court determines
that the defendant is eligible and that a lesser sentence may be
appropriate, the court may order a resentencing hearing,
otherwise the court shall enter an order denying the defendant's
petition.
(4) If the court orders a resentencing hearing, the court shall
determine at the hearing, in accordance with ORS 137.712, whether
imposition of a lesser sentence is warranted. If the court
determines that a lesser sentence is warranted, it shall state on
the record the substantial and compelling reasons in support of
the lesser sentence, vacate the judgment, impose the lesser
sentence and enter an amended judgment. If the court determines
that a lesser sentence is not warranted, it shall enter an order
denying the defendant's petition. + }
SECTION 7. { + (1) This section applies to prosecutions for
rape in the second degree as defined in ORS 163.365, sodomy in
the second degree as defined in ORS 163.395, unlawful sexual
penetration in the second degree as defined in ORS 163.408 or
sexual abuse in the first degree as defined in ORS 163.427
(1)(a)(A) if:
(a) The offense was committed on or after April 1, 1995, but
before the effective date of this 2003 Act; and
(b) A sentence has not been imposed before the effective date
of this 2003 Act.
(2) Only upon joint written consent of the convicted defendant
and the state, the court in which the prosecution of an offense
described in subsection (1) of this section is pending may
entertain a motion requesting that the defendant be sentenced
under ORS 137.712. The district attorney may file a response
either in support of or in opposition to the motion.
(3) When a motion is filed under subsection (2) of this
section, the court shall determine whether the defendant is
eligible under ORS 137.712 for a sentence less than the minimum
sentence and whether a lesser sentence may be appropriate. If the
court determines that the defendant is eligible and that a lesser
sentence may be appropriate, the court may impose sentence as
provided in ORS 137.712. Otherwise the court shall enter an order
denying the motion. + }
SECTION 8. { + The sentencing court retains authority,
irrespective of any notice of appeal after entry of judgment of
conviction, to modify its judgment and sentence to reflect the
results of a resentencing hearing ordered under section 6 of this
2003 Act. If a sentencing court enters an amended judgment under
section 6 of this 2003 Act, the court shall immediately forward a
copy of the amended judgment to the appellate court. + }
SECTION 9. { + If any court holds that the requirement of
joint written consent by the state and defendant required for the
court to entertain a petition for resentencing or a motion for
alternate sentencing under section 6 or 7 of this 2003 Act is
invalid, it is the intent of the Legislative Assembly that the
joint written consent requirement is nonseverable from the other
portions of sections 6, 7 and 8 of this 2003 Act and sections 6,
7 and 8 of this 2003 Act shall be entirely invalidated. + }
SECTION 10. ORS 137.719 is amended to read:
137.719. (1) { + (a) Except as otherwise provided in paragraph
(b) of this subsection, + } the presumptive sentence for a sex
crime that is a felony is life imprisonment without the
possibility of release or parole if the defendant has been
sentenced for sex crimes that are felonies at least two times
prior to the current sentence.
{ + (b) The presumptive sentence for a sex crime that is a
Class A felony is life imprisonment without the possibility of
release or parole if the defendant:
(A) Has a prior conviction for a sex crime that is a Class A
felony; and
(B) Has served the sentence of imprisonment that was imposed as
a result of the prior conviction. + }
(2) The court may impose a sentence other than the presumptive
sentence provided by subsection (1) of this section if the court
imposes a departure sentence authorized by the rules of the
Oregon Criminal Justice Commission based upon findings of
substantial and compelling reasons.
(3) For purposes of this section:
(a) Sentences for two or more convictions that are imposed in
the same sentencing proceeding are considered to be one
sentence { + . + }
{ - ; and - }
(b) A prior sentence includes:
(A) Sentences imposed before, on or after July 31, 2001; and
(B) Sentences imposed by any other state or federal court for
comparable offenses.
{ + (c) A prior conviction includes:
(A) Convictions occurring before, on or after the effective
date of this 2003 Act; and
(B) Convictions entered in any other state or federal court for
a comparable offense. + }
(4) As used in this section, 'sex crime' has the meaning given
that term in ORS 181.594.
SECTION 11. { + (1) A person commits the crime of unlawful
operation of an audiovisual recording device if the person:
(a) Knowingly operates an audiovisual recording device in a
facility where a motion picture is being exhibited; and
(b) Has not obtained the consent of the owner or lessee of the
facility and the licensor of the motion picture.
(2)(a) Except as otherwise provided in paragraph (b) of this
subsection, unlawful operation of an audiovisual recording device
is a Class A misdemeanor.
(b) Unlawful operation of an audiovisual recording device is a
Class C felony if the person has a previous conviction for
unlawful operation of an audiovisual recording device.
(3) Subsection (1) of this section does not apply to a police
officer in the discharge of official duties.
(4) If an owner or lessee of a facility or an employee of the
owner or lessee has probable cause to believe that a person has
violated subsection (1) of this section, the owner, lessee or
employee may detain the person in a reasonable manner and for a
reasonable time while waiting for a police officer to arrive. If
the owner, lessee or employee, having probable cause to believe
that a person has violated subsection (1) of this section,
detains a person in regard thereto, and the person brings a civil
or criminal action against the owner, lessee or employee based
upon the detention, the probable cause is a defense to the
action, if the detention was done in a reasonable manner and for
a reasonable time.
(5) As used in this section:
(a) 'Audiovisual recording device' means a device that is
capable of recording or transmitting a copy of a motion picture
or any part of a motion picture.
(b) 'Police officer' has the meaning given that term in ORS
181.610.
(c) 'Previous conviction' means a conviction that was entered
prior to imposing sentence on the current crime, provided that
the prior conviction is based on a crime committed in a separate
criminal episode. + }
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