75th OREGON LEGISLATIVE ASSEMBLY--2009 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 1260
House Bill 2102
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of former Representative Donna
Nelson)
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 as
introduced.
Expands criminal homicide to include causing death of unborn
child. Provides exception for lawful abortions and acts committed
by pregnant woman.
Creates crime of assault of unborn child. Punishes by maximum
of 10 years' imprisonment, $250,000 fine, or both.
A BILL FOR AN ACT
Relating to establishing unborn child as the legal victim of a
crime that results in harm to unborn child; creating new
provisions; and amending ORS 163.005, 163.095, 163.115,
163.118, 163.125 and 163.145.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.005 is amended to read:
163.005. { + (1) As used in this section:
(a) 'Criminal homicide' is murder, manslaughter, criminally
negligent homicide or aggravated vehicular homicide.
(b) 'Human being' means:
(A) A person who has been born and was alive at the time of the
criminal act; and
(B) An unborn child.
(c) 'Unborn child' means a member of the species Homo sapiens
at any stage of development while carried in the womb. + }
{ - (1) - } { + (2) + } A person commits criminal homicide
if, without justification or excuse, the person intentionally,
knowingly, recklessly or with criminal negligence causes the
death of another human being.
{ - (2) 'Criminal homicide' is murder, manslaughter,
criminally negligent homicide or aggravated vehicular
homicide. - }
{ - (3) 'Human being' means a person who has been born and
was alive at the time of the criminal act. - }
{ + (3) A person does not commit criminal homicide if the
death is of an unborn child and occurs:
(a) During a lawful abortion performed with the pregnant
woman's consent to the abortion or with the consent of a person
authorized to act on the pregnant woman's behalf; or
(b) As the result of acts committed by the pregnant woman.
(4) In a prosecution for a criminal homicide involving the
death of an unborn child, it is no defense that the defendant did
not know or could not reasonably have known that the woman was
pregnant. + }
SECTION 2. ORS 163.095 is amended to read:
163.095. { + (1) + } As used in ORS 163.105 and this section,
' aggravated murder' means murder as defined in ORS 163.115 which
is committed under, or accompanied by, any of the following
circumstances:
{ - (1)(a) - } { + (a) + } The defendant committed the
murder pursuant to an agreement that the defendant receive money
or other thing of value for committing the murder.
(b) The defendant solicited another to commit the murder and
paid or agreed to pay the person money or other thing of value
for committing the murder.
(c) The defendant committed murder after having been convicted
previously in any jurisdiction of any homicide, the elements of
which constitute the crime of murder as defined in ORS 163.115 or
manslaughter in the first degree as defined in ORS 163.118.
(d) There was more than one murder victim in the same criminal
episode as defined in ORS 131.505.
(e) The homicide occurred in the course of or as a result of
intentional maiming or torture of the victim.
(f) The victim of the intentional homicide was a
{ - person - } { + human being + } under the age of 14 years.
{ - (2)(a) - } { + (g) + } The victim was one of the
following and the murder was related to the performance of the
victim's official duties in the justice system:
(A) A police officer as defined in ORS 181.610;
(B) A correctional, parole and probation officer or other
person charged with the duty of custody, control or supervision
of convicted persons;
(C) A member of the Oregon State Police;
(D) A judicial officer as defined in ORS 1.210;
(E) A juror or witness in a criminal proceeding;
(F) An employee or officer of a court of justice; or
(G) A member of the State Board of Parole and Post-Prison
Supervision.
{ - (b) - } { + (h) + } The defendant was confined in a
state, county or municipal penal or correctional facility or was
otherwise in custody when the murder occurred.
{ - (c) - } { + (i) + } The defendant committed murder by
means of an explosive as defined in ORS 164.055.
{ - (d) - } { + (j) + } Notwithstanding ORS 163.115 (1)(b),
the defendant personally and intentionally committed the homicide
under the circumstances set forth in ORS 163.115 (1)(b).
{ - (e) - } { + (k) + } The murder was committed in an
effort to conceal the commission of a crime, or to conceal the
identity of the perpetrator of a crime.
{ - (f) - } { + (L) + } The murder was committed after the
defendant had escaped from a state, county or municipal penal or
correctional facility and before the defendant had been returned
to the custody of the facility.
{ + (2) As used in this section, 'human being' has the
meaning given that term in ORS 163.005. + }
SECTION 3. ORS 163.115 is amended to read:
163.115. (1) Except as provided in ORS 163.118 and 163.125,
criminal homicide constitutes murder:
(a) When it is committed intentionally, except that it is an
affirmative defense that, at the time of the homicide, the
defendant was under the influence of an extreme emotional
disturbance;
(b) When it is committed by a person, acting either alone or
with one or more persons, who commits or attempts to commit any
of the following crimes and in the course of and in furtherance
of the crime the person is committing or attempting to commit, or
during the immediate flight therefrom, the person, or another
participant if there be any, causes the death of a
{ - person - } { + human being + } other than one of the
participants:
(A) Arson in the first degree as defined in ORS 164.325;
(B) Criminal mischief in the first degree by means of an
explosive as defined in ORS 164.365;
(C) Burglary in the first degree as defined in ORS 164.225;
(D) Escape in the first degree as defined in ORS 162.165;
(E) Kidnapping in the second degree as defined in ORS 163.225;
(F) Kidnapping in the first degree as defined in ORS 163.235;
(G) Robbery in the first degree as defined in ORS 164.415;
(H) Any felony sexual offense in the first degree defined in
this chapter;
(I) Compelling prostitution as defined in ORS 167.017; or
(J) Assault in the first degree, as defined in ORS 163.185, and
the victim is { + a human being + } under 14 years of age, or
assault in the second degree, as defined in ORS 163.175 (1)(a) or
(b), and the victim is { + a human being + } under 14 years of
age; or
(c) By abuse when a person, recklessly under circumstances
manifesting extreme indifference to the value of human life,
causes the death of a { - child - } { + human being + } under
14 years of age or a dependent person, as defined in ORS 163.205,
and:
(A) The person has previously engaged in a pattern or practice
of assault or torture of the victim or another { - child - }
{ + human being + } under 14 years of age or a dependent person;
or
(B) The person causes the death by neglect or maltreatment.
(2) An accusatory instrument alleging murder by abuse under
subsection (1)(c) of this section need not allege specific
incidents of assault or torture.
(3) It is an affirmative defense to a charge of violating
subsection (1)(b) of this section that the defendant:
(a) Was not the only participant in the underlying crime;
(b) Did not commit the homicidal act or in any way solicit,
request, command, importune, cause or aid in the commission
thereof;
(c) Was not armed with a dangerous or deadly weapon;
(d) Had no reasonable ground to believe that any other
participant was armed with a dangerous or deadly weapon; and
(e) Had no reasonable ground to believe that any other
participant intended to engage in conduct likely to result in
death.
(4) It is an affirmative defense to a charge of violating
subsection (1)(c)(B) of this section that the { - child or
dependent person - } { + victim + } was under care or treatment
solely by spiritual means pursuant to the religious beliefs or
practices of the { - child or person - } { + victim + } or
the parent or guardian of the { - child or person - } { +
victim + }.
(5)(a) A person convicted of murder, who was at least 15 years
of age at the time of committing the murder, shall be punished by
imprisonment for life.
(b) When a defendant is convicted of murder under this section,
the court shall order that the defendant shall be confined for a
minimum of 25 years without possibility of parole, release to
post-prison supervision, release on work release or any form of
temporary leave or employment at a forest or work camp.
(c) At any time after completion of a minimum period of
confinement pursuant to paragraph (b) of this subsection, the
State Board of Parole and Post-Prison Supervision, upon the
petition of a prisoner so confined, shall hold a hearing to
determine if the prisoner is likely to be rehabilitated within a
reasonable period of time. The sole issue is whether or not the
prisoner is likely to be rehabilitated within a reasonable period
of time. At the hearing the prisoner has:
(A) The burden of proving by a preponderance of the evidence
the likelihood of rehabilitation within a reasonable period of
time; and
(B) The right, if the prisoner is without sufficient funds to
employ an attorney, to be represented by legal counsel, appointed
by the board, at board expense; and
(C) The right to a subpoena upon a showing of the general
relevance and reasonable scope of the evidence sought, provided
that any subpoena issued on behalf of the prisoner must be issued
by the State Board of Parole and Post-Prison Supervision pursuant
to rules adopted by the board.
(d) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its members, finds that the prisoner is
capable of rehabilitation and that the terms of the prisoner's
confinement should be changed to life imprisonment with the
possibility of parole, release to post-prison supervision or work
release, it shall enter an order to that effect and the order
shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole, release to
post-prison supervision or work release and may set a release
date. Otherwise, the board shall deny the relief sought in the
petition.
(e) The board's final order shall be accompanied by findings of
fact and conclusions of law. The findings of fact shall consist
of a concise statement of the underlying facts supporting the
findings as to each contested issue of fact and as to each
ultimate fact required to support the board's order.
(f) Not less than two years after the denial of the relief
sought in a petition under paragraph (c) of this subsection, the
prisoner may petition again for a change in the terms of
confinement. Further petitions for a change may be filed at
intervals of not less than two years thereafter.
(6) As used in this section:
(a) 'Assault' means to intentionally, knowingly or recklessly
cause physical injury to another person. 'Assault ' does not
include the causing of physical injury in a motor vehicle
accident that occurs by reason of the reckless conduct of a
defendant.
{ + (b) 'Human being' has the meaning given that term in ORS
163.005. + }
{ - (b) - } { + (c) + } 'Neglect or maltreatment' means a
violation of ORS 163.535, 163.545 or 163.547 or a failure to
provide adequate food, clothing, shelter or medical care that is
likely to endanger the health or welfare of a { - child - }
{ + human being + } under 14 years of age or a dependent
person. This paragraph is not intended to replace or affect the
duty or standard of care required under ORS chapter 677.
{ - (c) - } { + (d) + } 'Pattern or practice' means one or
more previous episodes.
{ - (d) - } { + (e) + } 'Torture' means to intentionally
inflict intense physical pain upon an unwilling victim as a
separate objective apart from any other purpose.
SECTION 4. ORS 163.118 is amended to read:
163.118. (1) Criminal homicide constitutes manslaughter in the
first degree when:
(a) It is committed recklessly under circumstances manifesting
extreme indifference to the value of human life;
(b) It is committed intentionally by a defendant under the
influence of extreme emotional disturbance as provided in ORS
163.135, which constitutes a mitigating circumstance reducing the
homicide that would otherwise be murder to manslaughter in the
first degree and need not be proved in any prosecution;
(c) A person recklessly causes the death of a { - child - }
{ + human being + } under 14 years of age or a dependent
person, as defined in ORS 163.205, and:
(A) The person has previously engaged in a pattern or practice
of assault or torture of the victim or another { - child - }
{ + human being + } under 14 years of age or a dependent person;
or
(B) The person causes the death by neglect or maltreatment, as
defined in ORS 163.115; or
(d) It is committed recklessly or with criminal negligence by a
person operating a motor vehicle while under the influence of
intoxicants in violation of ORS 813.010 and:
(A) The person has at least three previous convictions for
driving while under the influence of intoxicants under ORS
813.010, or its statutory counterpart in any jurisdiction, in the
10 years prior to the date of the current offense; or
(B)(i) The person has a previous conviction for any of the
crimes described in subsection (2) of this section, or their
statutory counterparts in any jurisdiction; and
(ii) The victim's serious physical injury in the previous
conviction was caused by the person driving a motor vehicle.
(2) The previous convictions to which subsection (1)(d)(B) of
this section applies are:
(a) Assault in the first degree under ORS 163.185;
(b) Assault in the second degree under ORS 163.175; or
(c) Assault in the third degree under ORS 163.165.
(3) Manslaughter in the first degree is a Class A felony.
(4) It is an affirmative defense to a charge of violating:
(a) Subsection (1)(c)(B) of this section that the { - child
or dependent person - } { + victim + } was under care or
treatment solely by spiritual means pursuant to the religious
beliefs or practices of the { - child or person - } { +
victim + } or the parent or guardian of the
{ - child or person - } { + victim + }.
(b) Subsection (1)(d)(B) of this section that the defendant was
not under the influence of intoxicants at the time of the conduct
that resulted in the previous conviction.
{ + (5) As used in this section, 'human being' has the
meaning given that term in ORS 163.005. + }
SECTION 5. ORS 163.125 is amended to read:
163.125. (1) Criminal homicide constitutes manslaughter in the
second degree when:
(a) It is committed recklessly;
(b) A person intentionally causes or aids another person to
commit suicide; or
(c) A person, with criminal negligence, causes the death of a
{ - child - } { + human being + } under 14 years of age or a
dependent person, as defined in ORS 163.205, and:
(A) The person has previously engaged in a pattern or practice
of assault or torture of the victim or another { - child - }
{ + human being + } under 14 years of age or a dependent person;
or
(B) The person causes the death by neglect or maltreatment, as
defined in ORS 163.115.
(2) Manslaughter in the second degree is a Class B felony.
{ + (3) As used in this section, 'human being' has the
meaning given that term in ORS 163.005. + }
SECTION 6. ORS 163.145 is amended to read:
163.145. (1) { - A person commits the crime of - }
{ + Criminal homicide constitutes + }criminally negligent
homicide when { - , - } { + it is committed + } with criminal
negligence { - , the person causes the death of another
person - } .
(2) Criminally negligent homicide is a Class B felony.
SECTION 7. { + Section 8 of this 2009 Act is added to and made
a part of ORS 163.160 to 163.208. + }
SECTION 8. { + (1) A person commits the crime of assault of an
unborn child if the person knowingly causes physical injury to
the mother of an unborn child without the mother's consent and by
causing physical injury to the mother:
(a) Causes serious physical injury to the unborn child; or
(b) Causes the unborn child to be born prior to 37 weeks'
gestation and the child weighs 2,500 grams or less at the time of
birth.
(2) Assault of an unborn child is a Class B felony.
(3) In a prosecution under this section, it is no defense that
the defendant did not know or could not reasonably have known
that the woman was pregnant.
(4) As used in this section, 'unborn child' has the meaning
given that term in ORS 163.005. + }
SECTION 9. { + Section 8 of this 2009 Act and the amendments
to ORS 163.005, 163.095, 163.115, 163.118, 163.125 and 163.145 by
sections 1 to 6 of this 2009 Act apply to conduct occurring on or
after the effective date of this 2009 Act. + }
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