Did the COA just dramatically limit the scope of Identity Theft? Maybe.
by: Ryan • October 29, 2014 • no comments
The statute defining identity theft has been written broadly, really broadly, that it has made a felony out of behavior that used to be a misdemeanor, even when the harm is less than that of a typical misdemeanor. If you cash a forged check for $50, using the name of an imaginary person, you're guilty of identity theft, a felony, when prior to the statute it would be the misdemeanors of forgery and theft.
The breadth of the statute was not, in my opinion, designed to protect the public from having their identity stolen. It was the fear of that type of crime -- and its crushing impact on someone's personal finances -- that allowed a law called identity theft to pass that has little to do with the aforementioned criminal behavior. Does that mean the legislature consciously wanted to make felonies out of non-violent misdemeanor thefts? I don't think so. I think the law was written so broadly to avoid all the potential difficulties the state might have in prosecuting. For example, if the state can't find an actual person's identity was stolen, make the victim "imaginary," so the prosecutor isn't burdened with bringing someone who was actually harmed into court. There was no intent to defraud? Allow a conviction for mere "deception," and make it a felony, even if the harm is non-existent.
Today, the COA pulled the statute back from its insane reach in State v. Zibulsky. It reversed two convictions for Identity Theft when the defendant pulled money from a joint account she shared with her father:
- We need not explore that abstract dispute about whose bank account information defendant used, however, because, as both parties acknowledge, the gravamen of the crime of "identity theft" is the improper use by one person of "another person's" identity. See ORS 165.800(1)("A person commits the crime of identity theft if * * *." (Emphasis added.)). That is, it is apparent in the statute's text what type of act the legislature intended to prohibit: the act of passing one's self off as "another person" through the use of a nonexclusive list of "personal information." The record in this case includes no evidence that defendant engaged in that type of act, i.e. , that she used any personal information that was not hers to use: She was named as a holder of the accounts. In other words, there is no evidence that defendant ever purported to be anyone other than herself. [Bold added.]
How much of a pullback this represents will be determined over time. But if you've handled ID Theft cases, then you know that the crime is frequently charged even when the defendant is not purporting to be the person whose personal identification is used. Rather, the personal identification is used in a collateral way and not in a way that suggests the defendant is passing himself off as that person.
That said, I think there is language in the opinion the state will cite to push back against that interpretation. Time will tell who is right. But today we have arguments we didn't have yesterday.
