Bill Text: OR SB621 | 2011 | Regular Session | Introduced

---

Bill Title: Relating to spiritual treatment.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB621 Detail]

Download: Oregon-2011-SB621-Introduced.html

---

     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 1736

                         Senate Bill 621

Sponsored by Senator STARR

                             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.

  Eliminates reliance on spiritual treatment as defense to
certain crimes. Modifies effect of reliance on spiritual
treatment in determining whether youth is subject to juvenile
court's dependency jurisdiction.

                        A BILL FOR AN ACT
Relating to spiritual treatment; creating new provisions; and
  amending ORS 137.712, 144.110, 163.115, 163.118, 163.206 and
  419B.100.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. 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 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 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 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 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 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 was under care or treatment solely by spiritual means
pursuant to the religious beliefs or practices of the child or
person or the parent or guardian of the child or person. - }
    { - (5)(a) - }  { +  (4)(a) + } Except as otherwise provided
in ORS 163.155, 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 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;
  (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) If the board denies the relief sought in the petition, the
board shall determine the date of the subsequent hearing, and the
prisoner may petition for an interim hearing, in accordance with
ORS 144.285.
  (f) 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.
    { - (6) - }  { +  (5) + } 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) '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 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) 'Pattern or practice' means one or more previous episodes.
  (d) 'Torture' means to intentionally inflict intense physical
pain upon an unwilling victim as a separate objective apart from
any other purpose.
  SECTION 2. 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 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 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 was under care or treatment solely by
spiritual means pursuant to the religious beliefs or practices of
the child or person or the parent or guardian of the child or
person. - }
    { - (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.
  SECTION 3. 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) - }  { +  (a) + } 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) - }  { +  (b) + } 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) - }  { +  (c) + } 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) - }  { +  (d) + } 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) That the offense did not involve sexual contact with any
minor other than the victim; and
  (F) 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) - }  { +  (e) + } 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) That the offense did not involve sexual contact with any
minor other than the victim;
  (F) 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) 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) - }  { +  (2)(a)(C), (b)(B),
(c)(D), (d)(B) and (e)(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. 'Conviction' does not include a juvenile court
adjudication described in this subparagraph if the person
successfully asserted the defense set forth in ORS 419C.522.
  (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 4. ORS 163.206 is amended to read:
  163.206. ORS 163.200 and 163.205 do not apply:
  (1) To a person acting pursuant to a court order, an advance
directive or a power of attorney for health care pursuant to ORS
127.505 to 127.660 or a POLST, as defined in ORS 127.663;
  (2) To a person withholding or withdrawing life-sustaining
procedures or artificially administered nutrition and hydration
pursuant to ORS 127.505 to 127.660;
  (3) When a competent person refuses food, physical care or
medical care;
    { - (4) To a person who provides an elderly person or a
dependent person who is at least 15 years of age with spiritual
treatment through prayer from a duly accredited practitioner of
spiritual treatment as provided in ORS 124.095, in lieu of
medical treatment, in accordance with the tenets and practices of
a recognized church or religious denomination of which the
elderly or dependent person is a member or an adherent; - }  or
    { - (5) - }  { +  (4) + } To a duly accredited practitioner
of spiritual treatment as provided in ORS 124.095.
  SECTION 5. ORS 419B.100 is amended to read:
  419B.100. (1) Except as otherwise provided in subsection (6) of
this section and ORS 107.726, the juvenile court has exclusive
original jurisdiction in any case involving a person who is under
18 years of age and:
  (a) Who is beyond the control of the person's parents, guardian
or other person having custody of the person;
  (b) Whose behavior is such as to endanger the welfare of the
person or of others;
  (c) Whose condition or circumstances are such as to endanger
the welfare of the person or of others;
  (d) Who is dependent for care and support on a public or
private child-caring agency that needs the services of the court
in planning for the best interest of the person;
  (e) Whose parents or any other person or persons having custody
of the person have:
  (A) Abandoned the person;
  (B) Failed to provide the person with the care or education
required by law;
  (C) Subjected the person to cruelty, depravity or unexplained
physical injury; or
  (D) Failed to provide the person with the care, guidance and
protection necessary for the physical, mental or emotional
well-being of the person;
  (f) Who has run away from the home of the person;
  (g) Who has filed a petition for emancipation pursuant to ORS
419B.550 to 419B.558; or
  (h) Who is subject to an order entered under ORS 419C.411
(7)(a).
  (2) The court shall have jurisdiction under subsection (1) of
this section even though the child is receiving adequate care
from the person having physical custody of the child.
    { - (3) The practice of a parent who chooses for the parent
or the child of the parent treatment by prayer or spiritual means
alone may not be construed as a failure to provide physical care
within the meaning of this chapter, but does not prevent a court
of competent jurisdiction from exercising that jurisdiction under
subsection (1)(c) of this section. - }
    { - (4) - }  { +  (3) + } The provisions of subsection (1) of
this section do not prevent a court of competent jurisdiction
from entertaining a civil action or suit involving a child.
    { - (5) - }  { +  (4) + } The court does not have further
jurisdiction as provided in subsection (1) of this section after
a minor has been emancipated pursuant to ORS 419B.550 to
419B.558.
    { - (6)(a) - }  { +  (5)(a) + } An Indian tribe has exclusive
jurisdiction over any child custody proceeding involving an
Indian child who resides or is domiciled within the reservation
of the tribe, except where the jurisdiction is otherwise vested
in the state by existing federal law.
  (b) Upon the petition of either parent, the Indian custodian or
the Indian child's tribe, the juvenile court, absent good cause
to the contrary and absent objection by either parent, shall
transfer a proceeding for the foster care placement of, or
termination of parental rights to, an Indian child not domiciled
or residing within the reservation of the Indian child's tribe,
to the jurisdiction of the tribe.
  (c) The juvenile court shall give full faith and credit to the
public acts, records and judicial proceedings of an Indian tribe
applicable to an Indian child custody proceeding to the same
extent that the juvenile court gives full faith and credit to the
public acts, records and judicial proceedings of any other
entity.
  SECTION 6. ORS 144.110 is amended to read:
  144.110. (1) In any felony case, the court may impose a minimum
term of imprisonment of up to one-half of the sentence it
imposes.
  (2) Notwithstanding the provisions of ORS 144.120 and 144.780:
  (a) The State Board of Parole and Post-Prison Supervision shall
not release a prisoner on parole who has been sentenced under
subsection (1) of this section until the minimum term has been
served, except upon affirmative vote of a majority of the members
of the board.
  (b) The board shall not release a prisoner on parole:
  (A) Who has been convicted of murder defined as aggravated
murder under the provisions of ORS 163.095, except as provided in
ORS 163.105; or
  (B) Who has been convicted of murder under the provisions of
ORS 163.115, except as provided in ORS 163.115   { - (5)(c) - }
 { +  (4)(c) + } to (f).
  SECTION 7.  { + The amendments to ORS 137.712, 144.110,
163.115, 163.118, 163.206 and 419B.100 by sections 1 to 6 of this
2011 Act apply to conduct occurring on or after the effective
date of this 2011 Act. + }
                         ----------