76th OREGON LEGISLATIVE ASSEMBLY--2011 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 3387
Senate Bill 678
Sponsored by COMMITTEE ON JUDICIARY
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.
Creates partial defense to certain sex offenses for certain
juveniles and persons less than three years older than victim.
Reduces sex offense to crime of inappropriate use of sexual image
or, under certain circumstances, authorizes court to impose
sentence not to exceed any otherwise applicable mandatory minimum
or presumptive sentence, whichever is longer.
Creates crime of inappropriate use of sexual image. Punishes by
maximum of one year's imprisonment, $6,250 fine, or both.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to crime; declaring an emergency; 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. { + (1) Except as otherwise provided in subsection
(3) of this section, in any prosecution under ORS 163.670,
163.684, 163.686, 163.687, 163.688, 163.689 or 163.693, it is an
affirmative defense that:
(a) The defendant was under 18 years of age at the time of the
offense; or
(b) The defendant was less than three years older than the
victim at the time of the offense.
(2) Except as otherwise provided in section 3 of this 2011 Act
or subsection (3) of this section, the affirmative defenses
described in subsection (1) of this section constitute mitigating
circumstances reducing what otherwise would be a violation of ORS
163.670, 163.684, 163.686, 163.687, 163.688, 163.689 or 163.693
to the offense of inappropriate use of a sexual image as defined
in section 2 of this 2011 Act.
(3) The affirmative defense described in:
(a) Subsection (1) of this section does not apply if:
(A) The state proves beyond a reasonable doubt that, at the
time the offense was committed, the victim was under 12 years of
age; or
(B) The defendant has a previous conviction or finding of
juvenile court jurisdiction for inappropriate use of a sexual
image as defined in section 2 of this 2011 Act.
(b) Subsection (1)(b) of this section does not apply if the
state proves beyond a reasonable doubt that:
(A) The defendant transferred the visual recording or visual
depiction, or authorized another person to observe or record the
sexually explicit conduct, for consideration; or
(B) The defendant used the visual recording or visual
depiction, or the victim's participation or engagement in
sexually explicit conduct, to commit coercion as defined in ORS
163.275 or theft by extortion as defined in ORS 164.075.
(4) As used in this section:
(a) 'Previous conviction or finding of juvenile court
jurisdiction' means a conviction or finding of juvenile court
jurisdiction that was entered prior to the commission of the
current offense.
(b) 'Victim' means the child who is the subject of the visual
recording or visual depiction or, in the case of a prosecution
under ORS 163.670, the child who participates or engages in
sexually explicit conduct. + }
SECTION 2. { + (1) A person commits the offense of
inappropriate use of a sexual image if the person violates ORS
163.670, 163.684, 163.686, 163.687, 163.688, 163.689 or 163.693
under the mitigating circumstances described in section 1 of this
2011 Act.
(2) The state:
(a) May charge the offense of inappropriate use of a sexual
image by alleging the elements of ORS 163.670, 163.684, 163.686,
163.687, 163.688, 163.689 or 163.693;
(b) Need not prove the existence of an affirmative defense
described in section 1 of this 2011 Act as a precondition to a
conviction or finding of juvenile court jurisdiction; and
(c) Notwithstanding that the circumstances described in section
1 (3) of this 2011 Act exist, may allege a violation of this
section by a person described in section 1 (1) of this 2011 Act.
In a prosecution described in this paragraph, nothing in section
1 (3) of this 2011 Act prohibits a court from entering a judgment
of conviction or a finding of juvenile court jurisdiction for a
violation of this section.
(3) Inappropriate use of a sexual image is a Class A
misdemeanor. + }
SECTION 3. { + (1) Notwithstanding any other provision of law,
when a person is convicted of an offense described in subsection
(3) of this section the court may impose a sentence of probation
or a term of imprisonment that does not exceed any otherwise
applicable mandatory minimum or presumptive sentence for the
offense, whichever is longer, if:
(a) At the time the offense was committed, the defendant was
under 18 years of age;
(b) At the time the offense was committed, the victim was under
12 years of age; and
(c) No other circumstance described in section 1 (3) of this
2011 Act exists.
(2) In making the sentencing determination described in this
section, the court shall consider, in addition to any other
factor the court considers appropriate:
(a) The age of the defendant and the age of the victim, at the
time the offense was committed;
(b) The nature of the sexually explicit conduct involved in the
offense; and
(c) Any criminal history of the defendant.
(3) This section applies to:
(a) Using a child in a display of sexually explicit conduct as
defined in ORS 163.670.
(b) Encouraging child sexual abuse in the first degree as
defined in ORS 163.684.
(c) Encouraging child sexual abuse in the second degree as
defined in ORS 163.686.
(d) Possession of materials depicting sexually explicit conduct
of a child in the first degree as defined in ORS 163.688.
(e) Possession of materials depicting sexually explicit conduct
of a child in the second degree as defined in ORS 163.689. + }
SECTION 4. { + Sections 1 and 2 of this 2011 Act are added to
and made a part of ORS 163.670 to 163.693. + }
SECTION 5. { + Sections 1 to 3 of this 2011 Act apply only to
conduct occurring on or after the effective date of this 2011
Act. + }
SECTION 6. { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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