OSC continues to show interest in defining "victim"
by: Ryan • March 17, 2014 • no comments
The Oregon Supreme Court has just granted review in State v. Lykins. The questions presented are:
(1) What is the definition of "victim" for purposes of the rules governing the imposition of departure sentences?
(2) Is the victim of the crime of tampering with a witness under ORS 162.285 the State of Oregon or the witness?
The lower court had found the victim of witness tampering to be the witness tampered with, not the state. Of course, I can't help but wonder if the issue would have been decided the same way if presented in the context of a civil compromise.
(Witness tampering is defined at ORS 162.285. Chapter 162 is titled "offenses against the state and public justice." Draw from that what you will.)
Anyway, this is part of what I hope will be a positive trend in the Oregon Supreme Court. They've already heard argument on whether animals are victims in the context of the merger statute.
And defining the victim will come up in other contexts. I predict in less than 3 years, the Oregon Supreme Court will grant review to the question whether persons who died before the crime was committed can be victims of that crime. You may think the answer is obvious. The AG's office -- in a child porn appeal -- says it is not.
Perhaps no other issue is more immune to rigorous legal analysis than determining who is or is not a victim. Even more so than normal, the sympathy is usually going to be with the prosecution. Who could be against puppies? Especially mistreated puppies. In fact, just reading the phrase "mistreated puppies," don't you want to break the hands of the hypothetical defendant?
It is worth keeping in mind this issue comes up not because there's a desire to do more to comfort, console, restore or otherwise improve the lives of victims. It usually comes up so the prosecutor can maximize the number of counts and the length of the sentence, so that even innocent defendants will feel compelled to plead rather than take all the risks associated with trial. In other words, it's all about damaging the defendant, not aiding the victim.
