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In order to be a victim, you must be harmed or potentially harmed

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by: Ryan • September 17, 2013 • no comments

Watching oral argument at the Oregon Supreme Court, I was reminded again of the simple and obvious principle that if someone is beyond harm -- either because they are imaginary or because they died years before -- they cannot be a victim of a crime. It came up when everyone agreed that there was no victim, except perhaps the state of Oregon, of the crime of "abuse of a corpse." At that point, as noted by Shakespeare, the corpse no longer need fear "the heat o' the sun or the cold winter's rages."

Moreover, it is also not in dispute that it's the state's burden to prove the existence of a victim.

So I want everyone to remember that in a child-porn case, where the state is arguing that the children are victims -- not of the photographer -- of your client, who merely downloaded or looked at the pictures, the state is required to prove the children were alive when the pictures were looked at. (They don't need to show that to prove the crime, but they do need to show that to prove a victim.) Without proving that the children still existed, the state cannot take advantage of all the sentencing advantages of separate victims. Similarly, in an ID Theft case where the defendant has a hundred fake ideas, all in different names, it is the state's burden to prove those IDs belong to people who aren't imaginary. The name itself is not enough. So while the defendant could be found guilty of 12 counts of ID Theft from one criminal episode, one count for each name, without proof that the victim is real, the counts would merge into a single conviction.

There may be other obstacles to merger, but there's no reason that the appellate courts couldn't apply a principle so universally recognized to ID Theft and ECSA charges.