Or Leg Makes Good Change to Law, But Still Keeps Stupid Part

This wikilog article is a draft, it was not published yet.

by: Ryan • June 13, 2013 • no comments

The Oregon Legislature has amended the expungement statutes to allow an important change. Certain sex convictions under certain conditions -- if the defendant was within 5 years of the victim, if the conviction was based solely on age of the victim but the sexual contact was otherwise consensual, if there was only one victim -- can be expunged. Here's the relevant language:

(b) A sex crime listed in ORS 181.830 (1)(a) if:

(A) The person has been relieved of the obligation to report as a sex offender pursuant to a court order entered under ORS 181.832 or 181.833; and

(B) The person has not been convicted of, found guilty except for insanity of or found to be within the jurisdiction of the juvenile court based on, a crime that a court is prohibited from setting aside under this section.

(Note that there is additional language allowing expungement of more serious offenses if the defendant was under 16. I'm not addressing that change here.)

The key things to note are that (1) the defendant must have been relieved of his sex offender registration obligation and (2) but only if that relief was granted under ORS 181.832 or 181.833. These are not the statutes that authorize relief after 10 years and only one conviction. That statute can be found at ORS 181.820. No, the conditions a defendant must meet in order to be eligible for expungement are:

(1)(a) The person has been convicted of:
     (A) Rape in the third degree as defined in ORS 163.355;
     (B) Sodomy in the third degree as defined in ORS 163.385;
     (C) Sexual abuse in the third degree as defined in ORS 163.415;
     (D) Contributing to the sexual delinquency of a minor as defined in ORS 163.435;
     (E) Sexual misconduct as defined in ORS 163.445; or
     (F) An attempt to commit an offense listed in subparagraphs (A) to (E) of this paragraph;
     (b) The person has been found guilty except for insanity of an offense listed in paragraph (a) of this subsection;
     (c) The person has been found to be within the jurisdiction of the juvenile court for having committed an act that if committed by an adult would constitute an offense listed in paragraph (a)(A) or (B) of this subsection; or
     (d) The person is paroled to this state under ORS 144.610 after being convicted in another United States court of a crime that would constitute an offense listed in paragraph (a) of this subsection;
     (2)(a) The person is less than five years older than the victim;
     (b) The victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age;
     (c) The victim was at least 14 years of age at the time of the offense or act;
     (d) Except for the convictions or findings described in subsection (1) of this section, the person has not been convicted of, found guilty except for insanity of, or found to be within the jurisdiction of the juvenile court based on, a sex crime or an offense, in another United States court, for conduct that if committed in this state would constitute a sex crime; and
     (e) Each conviction or finding described in subsection (1) of this section involved the same victim; and
     (3) The court enters an order relieving the person of the requirement to report under ORS 181.832 or 181.833. 

All of that seems fine and reasonable. It's what's missing that's stupid. Missing from the statutes above is Sex Abuse in the Second Degree, a crime that can be committed in a couple of different ways, including otherwise consensual sex with a 17 year old. But note that a Rape in the Third Degree conviction wouldn't render a defendant ineligible. So the legislature has -- with the help of the Oregon Supreme Court in this year's sad and embarrassing St v Ofodrinwa decision -- reaffirmed the idea that a 19 year old who has sex with a 14 year old may be eligible for expungement, but a 20 year old who was sex with a 17 year old would not.

Again, this is a good change, and congratulations to the legislature for making the change. But as long as you're making improvements, can you get rid of one of the most nonsensical laws in the country?

Two final thoughts. It should go without saying that this post reflects my opinions and my opinions only.

Second, the absurdity of the law is likely subject to a constitutional, equal privileges challenge. Talk to me if you're thinking of making such a challenge.