Bill Text: OR HB3185 | 2013 | Regular Session | Introduced

---

Bill Title: Relating to crime; declaring an emergency.

Spectrum: Committee Bill

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3185 Detail]

Download: Oregon-2013-HB3185-Introduced.html

---

     77th OREGON LEGISLATIVE ASSEMBLY--2013 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 2853

                         House Bill 3185

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 crime of causing child to witness sexually explicit
conduct in first degree. Punishes by maximum of five years'
imprisonment, $125,000 fine, or both. Designates crime as sex
crime.
  Creates crime of causing child to witness sexually explicit
conduct in second degree. Punishes by maximum of one year's
imprisonment, $6,250 fine, or both. Designates crime as sex
crime.
  Removes certain provisions relating to crime of endangering
welfare of minor that cover similar conduct.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to crime; creating new provisions; amending ORS 137.225,
  163.345, 163.575, 163.580, 181.594 and 475.245; and declaring
  an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. { +  Sections 2 and 3 of this 2013 Act are added to
and made a part of ORS 163.305 to 163.467. + }
  SECTION 2.  { + (1) A person commits the crime of causing a
child to witness sexually explicit conduct in the first degree if
the person knowingly engages in an act of sexually explicit
conduct as defined in ORS 163.665 while knowing that the act will
be witnessed by a child under 14 years of age.
  (2) Causing a child to witness sexually explicit conduct in the
first degree is a Class C felony.
  (3) The Oregon Criminal Justice Commission shall classify
causing a child to witness sexually explicit conduct in the first
degree as a person felony and crime category 6 on the crime
seriousness scale of the sentencing guidelines. + }
  SECTION 3.  { + (1) A person commits the crime of causing a
child to witness sexually explicit conduct in the second degree
if the person engages in an act of sexually explicit conduct as
defined in ORS 163.665 while knowing that the act will be
witnessed by a child under 18 years of age.
  (2) Causing a child to witness sexually explicit conduct in the
second degree is a Class A misdemeanor. + }
  SECTION 4. ORS 163.345 is amended to read:
  163.345. (1) In any prosecution under ORS 163.355, 163.365,
163.385, 163.395, 163.415, 163.425, 163.427 or 163.435 { +  or
section 2 or 3 of this 2013 Act + } in which the victim's lack of
consent was due solely to incapacity to consent by reason of
being less than a specified age, it is a defense that the actor
was less than three years older than the victim at the time of
the alleged offense.
  (2) In any prosecution under ORS 163.408, when the object used
to commit the unlawful sexual penetration was the hand or any
part thereof of the actor and in which the victim's lack of
consent was due solely to incapacity to consent by reason of
being less than a specified age, it is a defense that the actor
was less than three years older than the victim at the time of
the alleged offense.
  (3) In any prosecution under ORS 163.445 in which the victim's
lack of consent was due solely to incapacity to consent by reason
of being less than a specified age, it is a defense that the
actor was less than three years older than the victim at the time
of the alleged offense if the victim was at least 15 years of age
at the time of the alleged offense.
  SECTION 5. ORS 163.575 is amended to read:
  163.575. (1) A person commits the crime of endangering the
welfare of a minor if the person knowingly:
    { - (a) Induces, causes or permits an unmarried person under
18 years of age to witness an act of sexual conduct or
sadomasochistic abuse as defined by ORS 167.060; or - }
    { - (b) - }   { + (a)  + }Permits a person under 18 years of
age to enter or remain in a place where unlawful activity
involving controlled substances is maintained or conducted;
 { - or - }
    { - (c) - }   { + (b) + } Induces, causes or permits a person
under 18 years of age to participate in gambling as defined by
ORS 167.117;   { - or - }
    { - (d) - }   { + (c)  + }Distributes, sells, or causes to be
sold, tobacco in any form to a person under 18 years of age; or
    { - (e) - }   { + (d) + } Sells to a person under 18 years of
age any device in which tobacco, marijuana, cocaine or any
controlled substance, as defined in ORS 475.005, is burned and
the principal design and use of which is directly or indirectly
to deliver tobacco smoke, marijuana smoke, cocaine smoke or smoke
from any controlled substance into the human body including but
not limited to:
  (A) Pipes, water pipes, hookahs, wooden pipes, carburetor
pipes, electric pipes, air driven pipes, corncob pipes,
meerschaum pipes and ceramic pipes, with or without screens,
permanent screens, hashish heads or punctured metal bowls;
  (B) Carburetion tubes and devices, including carburetion masks;
  (C) Bongs;
  (D) Chillums;
  (E) Ice pipes or chillers;
  (F) Cigarette rolling papers and rolling machines; and
  (G) Cocaine free basing kits.
  (2) Endangering the welfare of a minor by violation of
subsection (1)(a), (b)  { - , (c) - }  or   { - (e) - }
 { + (d) + } of this section, involving other than a device for
smoking tobacco, is a Class A misdemeanor.
  (3) Endangering the welfare of a minor by violation of
subsection   { - (1)(d) - }   { + (1)(c) + } of this section or
by violation of subsection   { - (1)(e) - }   { + (1)(d) + } of
this section, involving a device for smoking tobacco, is a Class
A violation.
  SECTION 6. ORS 181.594 is amended to read:
  181.594. As used in this section and ORS 181.595, 181.596,
181.597, 181.603, 181.609, 181.826, 181.830 and 181.833:
  (1) 'Another United States court' means a federal court, a
military court, the tribal court of a federally recognized Indian
tribe or a court of:
  (a) A state other than Oregon;
  (b) The District of Columbia;
  (c) The Commonwealth of Puerto Rico;
  (d) Guam;
  (e) American Samoa;
  (f) The Commonwealth of the Northern Mariana Islands; or
  (g) The United States Virgin Islands.
  (2) 'Attends' means is enrolled on a full-time or part-time
basis.
  (3)(a) 'Correctional facility' means any place used for the
confinement of persons:
  (A) Charged with or convicted of a crime or otherwise confined
under a court order.
  (B) Found to be within the jurisdiction of the juvenile court
for having committed an act that if committed by an adult would
constitute a crime.
  (b) 'Correctional facility' applies to a state hospital or a
secure intensive community inpatient facility only as to persons
detained therein charged with or convicted of a crime, or
detained therein after being found guilty except for insanity
under ORS 161.290 to 161.370 or responsible except for insanity
under ORS 419C.411.
  (4) 'Institution of higher education' means a public or private
educational institution that provides a program of post-secondary
education.
  (5) 'Sex crime' means:
  (a) Rape in any degree;
  (b) Sodomy in any degree;
  (c) Unlawful sexual penetration in any degree;
  (d) Sexual abuse in any degree;
  (e) Incest with a child victim;
  (f) Using a child in a display of sexually explicit conduct;
  (g) Encouraging child sexual abuse in any degree;
  (h) Transporting child pornography into the state;
  (i) Paying for viewing a child's sexually explicit conduct;
  (j) Compelling prostitution;
  (k) Promoting prostitution;
  (L) Kidnapping in the first degree if the victim was under 18
years of age;
  (m) Contributing to the sexual delinquency of a minor;
  (n) Sexual misconduct if the offender is at least 18 years of
age;
  (o) Possession of materials depicting sexually explicit conduct
of a child in the first degree;
  (p) Kidnapping in the second degree if the victim was under 18
years of age, except by a parent or by a person found to be
within the jurisdiction of the juvenile court;
  (q) Online sexual corruption of a child in any degree if the
offender reasonably believed the child to be more than five years
younger than the offender;
  (r) Sexual assault of an animal;
   { +  (s) Causing a child to witness sexually explicit conduct
in any degree; + }
    { - (s) - }   { + (t) + } Any attempt to commit any of the
crimes set forth in paragraphs (a) to   { - (r) - }   { + (s) + }
of this subsection;
    { - (t) - }   { + (u) + } Burglary, when committed with
intent to commit any of the offenses listed in paragraphs (a) to
 { - (r) or (u) - }   { + (s) or (v) + } of this subsection; or
    { - (u) - }   { + (v) + } Public indecency or private
indecency, if the person has a prior conviction for a crime
listed in this subsection.
  (6) 'Sex offender' means a person who:
  (a) Has been convicted of a sex crime;
  (b) Has been found guilty except for insanity of a sex crime;
  (c) Is paroled to this state under ORS 144.610 after being
convicted in another United States court of a crime that would
constitute a sex crime if committed in this state; or
  (d) Is described in ORS 181.609 (1).
  (7) 'Works' or 'carries on a vocation' means full-time or
part-time employment for more than 14 days within one calendar
year whether financially compensated, volunteered or for the
purpose of governmental or educational benefit.
  SECTION 7. ORS 137.225, as amended by section 4, chapter 70,
Oregon Laws 2012, is amended to read:
  137.225. (1)(a) At any time after the lapse of three years from
the date of pronouncement of judgment, any defendant who has
fully complied with and performed the sentence of the court and
whose conviction is described in subsection (5) of this section
by motion may apply to the court where the conviction was entered
for entry of an order setting aside the conviction; or
  (b) At any time after the lapse of one year from the date of
any arrest, if no accusatory instrument was filed, or at any time
after an acquittal or a dismissal of the charge, the arrested
person may apply to the court that would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside the record of the arrest. For the purpose of
computing the one-year period, time during which the arrested
person has secreted himself or herself within or without this
state is not included.
  (2)(a) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting
attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory
instrument filed, and opportunity shall be given to contest the
motion. The fingerprint card with the notation 'motion for
setting aside conviction,' or 'motion for setting aside arrest
record' as the case may be, shall be forwarded to the Department
of State Police. Information resulting from the fingerprint
search along with the fingerprint card shall be returned to the
prosecuting attorney.
  (b) When a prosecuting attorney is served with a copy of a
motion to set aside a conviction under this section, the
prosecuting attorney shall provide a copy of the motion and
notice of the hearing date to the victim, if any, of the crime by
mailing a copy of the motion and notice to the victim's
last-known address.
  (c) When a person makes a motion under subsection (1)(a) of
this section, the person must pay a fee of $80 to the Department
of State Police. The person shall attach a certified check
payable to the Department of State Police in the amount of $80 to
the fingerprint card that is served upon the prosecuting
attorney. The office of the prosecuting attorney shall forward
the check with the fingerprint card to the Department of State
Police.
  (d) In addition to the fee established under paragraph (c) of
this subsection, when a person makes a motion under subsection
(1)(a) of this section the person must pay the filing fee
established under ORS 21.135.
  (3) Upon hearing the motion, the court may require the filing
of such affidavits and may require the taking of such proofs as
the court deems proper. The court shall allow the victim to make
a statement at the hearing. Except as otherwise provided in
subsection (14) of this section, if the court determines that the
circumstances and behavior of the applicant from the date of
conviction, or from the date of arrest as the case may be, to the
date of the hearing on the motion warrant setting aside the
conviction, or the arrest record as the case may be, the court
shall enter an appropriate order that shall state the original
arrest charge and the conviction charge, if any and if different
from the original, date of charge, submitting agency and
disposition. The order shall further state that positive
identification has been established by the Department of State
Police and further identified as to Department of State Police
number or submitting agency number. Upon the entry of the order,
the applicant for purposes of the law shall be deemed not to have
been previously convicted, or arrested as the case may be, and
the court shall issue an order sealing the record of conviction
and other official records in the case, including the records of
arrest whether or not the arrest resulted in a further criminal
proceeding.
  (4) The clerk of the court shall forward a certified copy of
the order to such agencies as directed by the court. A certified
copy must be sent to the Department of Corrections when the
person has been in the custody of the Department of Corrections.
Upon entry of the order, the conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to its
occurrence.
  (5) The provisions of subsection (1)(a) of this section apply
to a conviction of:
  (a) A Class B felony, except for a violation of ORS 166.429 or
any crime classified as a person felony as that term is defined
in the rules of the Oregon Criminal Justice Commission.
  (b) A Class C felony, except for criminal mistreatment in the
first degree under ORS 163.205 when it would constitute child
abuse as defined in ORS 419B.005 or any sex crime.
  (c) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
  (d) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for:
  (A) Any sex crime; or
    { - (B) The following crimes when they would constitute child
abuse as defined in ORS 419B.005: - }
    { - (i) - }   { + (B) + } Criminal mistreatment in the first
degree under ORS 163.205 { +  when it would constitute child
abuse as defined in ORS 419B.005. + }  { - ; and - }
    { - (ii) Endangering the welfare of a minor under ORS 163.575
(1)(a). - }
  (e) A misdemeanor, including a violation of a municipal
ordinance, for which a jail sentence may be imposed, except for
  { - endangering the welfare of a minor under ORS 163.575 (1)(a)
when it would constitute child abuse as defined in ORS 419B.005
or - }  any sex crime.
  (f) A violation, whether under state law or local ordinance.
  (g) An offense committed before January 1, 1972, that if
committed after that date would be:
  (A) A Class C felony, except for any sex crime or for   { - the
following crimes when they would constitute child abuse as
defined in ORS 419B.005: - }
    { - (i) - }  criminal mistreatment in the first degree under
ORS 163.205  { - ; and - }  { +  when it would constitute child
abuse as defined in ORS 419B.005. + }
    { - (ii) Endangering the welfare of a minor under ORS 163.575
(1)(a). - }
  (B) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for any sex crime or for
  { - the following crimes when they would constitute child abuse
as defined in ORS 419B.005: - }
    { - (i) - }  criminal mistreatment in the first degree under
ORS 163.205  { - ; and - }  { +  when it would constitute child
abuse as defined in ORS 419B.005. + }
    { - (ii) Endangering the welfare of a minor under ORS 163.575
(1)(a). - }
  (C) A misdemeanor, except for   { - endangering the welfare of
a minor under ORS 163.575 (1)(a) when it would constitute child
abuse as defined in ORS 419B.005 or - }  any sex crime.
  (D) A violation.
  (6) Notwithstanding subsection (5) of this section, the
provisions of subsection (1) of this section do not apply to:
  (a) A conviction for a state or municipal traffic offense.
  (b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of
this section, of any other offense, excluding motor vehicle
violations, whether or not the other conviction is for conduct
associated with the same criminal episode that caused the arrest
or conviction that is sought to be set aside. Notwithstanding
subsection (1) of this section, a conviction that has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable.
  (c) A person who at the time the motion authorized by
subsection (1) of this section is pending before the court is
under charge of commission of any crime.
  (7) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section do not apply to:
  (a) Criminal mistreatment in the second degree under ORS
163.200 if the victim at the time of the crime was 65 years of
age or older; and
  (b) Criminal mistreatment in the first degree under ORS 163.205
if the victim at the time of the crime was 65 years of age or
older.
  (8) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section do not apply to
criminally negligent homicide under ORS 163.145, when that
offense was punishable as a Class C felony.
  (9) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section apply to a
conviction for a Class B felony described in subsection (5)(a) of
this section only if:
  (a) Twenty years or more have elapsed from the date of the
conviction sought to be set aside or of the release of the person
from imprisonment for the conviction sought to be set aside,
whichever is later; and
  (b) The person has not been convicted of or arrested for any
other offense, excluding motor vehicle violations, after the date
the person was convicted of the offense sought to be set aside.
Notwithstanding subsection (1) of this section, a conviction or
arrest that has been set aside under this section shall be
considered for the purpose of determining whether this paragraph
is applicable.
  (10) The provisions of subsection (1)(b) of this section do not
apply to:
  (a) A person arrested within the three-year period immediately
preceding the filing of the motion for any offense, excluding
motor vehicle violations, and excluding arrests for conduct
associated with the same criminal episode that caused the arrest
that is sought to be set aside. An arrest that has been set aside
under this section may not be considered for the purpose of
determining whether this paragraph is applicable.
  (b) An arrest for driving while under the influence of
intoxicants if the charge is dismissed as a result of the
person's successful completion of a diversion agreement described
in ORS 813.200.
  (11) The provisions of subsection (1) of this section apply to
convictions and arrests that occurred before, as well as those
that occurred after, September 9, 1971. There is no time limit
for making an application.
  (12) For purposes of any civil action in which truth is an
element of a claim for relief or affirmative defense, the
provisions of subsection (3) of this section providing that the
conviction, arrest or other proceeding be deemed not to have
occurred do not apply and a party may apply to the court for an
order requiring disclosure of the official records in the case as
may be necessary in the interest of justice.
  (13) Upon motion of any prosecutor or defendant in a case
involving records sealed under this section, supported by
affidavit showing good cause, the court with jurisdiction may
order the reopening and disclosure of any records sealed under
this section for the limited purpose of assisting the
investigation of the movant. However, such an order has no other
effect on the orders setting aside the conviction or the arrest
record.
  (14) Unless the court makes written findings by clear and
convincing evidence that granting the motion would not be in the
best interests of justice, the court shall grant the motion and
enter an order as provided in subsection (3) of this section if
the defendant has been convicted of one of the following crimes
and is otherwise eligible for relief under this section:
  (a) Abandonment of a child, ORS 163.535.
  (b) Attempted assault in the second degree, ORS 163.175.
  (c) Assault in the third degree, ORS 163.165.
  (d) Coercion, ORS 163.275.
  (e) Criminal mistreatment in the first degree, ORS 163.205.
  (f) Attempted escape in the first degree, ORS 162.165.
  (g) Incest, ORS 163.525, if the victim was at least 18 years of
age.
  (h) Intimidation in the first degree, ORS 166.165.
  (i) Attempted kidnapping in the second degree, ORS 163.225.
  (j) Attempted robbery in the second degree, ORS 164.405.
  (k) Robbery in the third degree, ORS 164.395.
  (L) Supplying contraband, ORS 162.185.
  (m) Unlawful use of a weapon, ORS 166.220.
  (15) As used in this section, 'sex crime' has the meaning given
that term in ORS 181.594.
  SECTION 8. ORS 163.580 is amended to read:
  163.580. (1) Any person who sells any of the smoking devices
listed in ORS 163.575   { - (1)(e) - }  { +  (1)(d) + } shall
display a sign clearly stating that the sale of such devices to
persons under 18 years of age is prohibited by law.
  (2) Any person who violates this section commits a Class B
violation.
  SECTION 9. ORS 475.245 is amended to read:
  475.245. Whenever any person pleads guilty to or is found
guilty of possession of a controlled substance under ORS 475.752
(3), 475.814, 475.824, 475.834, 475.854, 475.864, 475.874,
475.884 or 475.894, of endangering the welfare of a minor under
ORS 163.575   { - (1)(b) - }  { +  (1)(a) + }, of frequenting a
place where controlled substances are used under ORS 167.222 or
of a property offense that is motivated by a dependence on a
controlled substance, the court, without entering a judgment of
guilt and with the consent of the district attorney and the
accused, may defer further proceedings and place the person on
probation. Upon violation of a term or condition of probation,
the court may enter an adjudication of guilt and proceed as
otherwise provided. Upon fulfillment of the terms and conditions,
the court shall discharge the person and dismiss the proceedings
against the person.  Discharge and dismissal under this section
shall be without adjudication of guilt and is not a conviction
for purposes of this section or for purposes of disqualifications
or disabilities imposed by law upon conviction of a crime. There
may be only one discharge and dismissal under this section with
respect to any person.
  SECTION 10.  { + This 2013 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2013 Act takes effect on
its passage. + }
                         ----------