Some DV Crimes are Civilly Compromisable

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

by: Eelison • August 16, 2013 • no comments

Recently I've heard a few discussions about whether a defendant can ever civilly compromise a DV crime. The answer is that the civil compromise statute only bars 6 enumerated DV crimes. Any other DV crimes are eligible for civil compromise. The statute is capable of being read to bar all DV crimes, but the legislative history is not capable of such a reading.

The relevant statute, ORS 135.703, could have been written more clearly to indicate that the domestic violence bar is limited to the enumerated crimes:

When a defendant is charged with a crime punishable as a misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised, as provided in ORS 135.705, except when it was committed:

. . .(d) By one family or household member upon another family or household member, as defined in ORS 107.705, or by a person upon an elderly person or a person with a disability as defined in ORS 124.005 and the crime was:

(A) Assault in the fourth degree under ORS 163.160;

(B) Assault in the third degree under ORS 163.165;

(C) Menacing under ORS 163.190;

(D) Recklessly endangering another person under ORS 163.195;

(E) Harassment under ORS 166.065;

(F) Strangulation under ORS 163.187.

The issue is whether the crimes enumerated in (A)—(F) only limit the ability to civilly compromise to when those crimes are committed against an elderly or disabled person. Or, alternatively, do (A)—(F) also limit the ability to civilly compromise DV crimes. In other words, if (A)—(F) only apply to crimes against the elderly or disabled, then DV crimes (“by one family or household member upon another family or household member”) cannot be civilly compromised.

The good news is that legislative history of ORS 135.705 clears up this question in defendants’ favor by confirming that the legislature intended that the clause “by one family or household member upon another family or household member” be read in conjunction with “and the crime was [(A)–(F)].”

In the 1972 overhaul of the criminal procedure laws, the Criminal Law Revision Commission set out the civil compromise section, which simply stated that if the person injured acknowledges in writing that they had received satisfaction, the case was discharged. Oregon Criminal Procedure Code, Final Draft and Report §287, p. 171 (1972). In 1991, House Bill 3051 proposed excluding all domestic violence crimes from being civilly compromised. Instead of passing a broad ban on all domestic violence cases, the legislature instead passed a limited, amended bill that only excluded a specific, enumerated list of domestic violence person crimes from being civilly compromised. Oregon Laws ch. 938 § 1; see also HB 3051 House Judiciary Committee Minutes of April 5, 1991, Tape 30, Side A) (comment of Committee Counsel Holly Robinson that the adopted amendments specify which crimes are subject to the prohibition). The 1991 bill amended ORS 135.703 to read:

When a defendant is charged with a crime punishable as a misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised as provided in ORS 135.705, except when it was committed:

(1) By or upon a peace officer while in the execution of the duties of office;

(2) Riotously;

(3) With an intent to commit a crime punishable only as a felony; or

(4) By one family or household member upon another family or household member, as defined in ORS 107.705, and the crime was

a. Assault in the fourth degree . . . ;

b. Assault in the third degree . . . ;

c. Menacing . . . ;

d. Recklessly endangering another person . . . ; or

e. Harassment . . . .

ORS 135.703 (1991) (emphasis added). Notably, this bill did not include any mention of crimes against the elderly or the disabled—the only crimes to which the clause “and the crime was [enumerated in (A)–(F)]” could attach was the clause about domestic violence cases. The legislature later added the prohibition against a civil compromise for the enumerated crimes when the alleged victim was elderly (1995 Oregon Laws ch. 66) or disabled (1999 Oregon Laws ch. 738 § 9. Thus, the intent of the legislature was to require that the crime be both a domestic violence crime and be one of the enumerated person crimes before it would be foreclosed from a civil compromise.

Further evidencing the intent of the legislature was a bill proposed in 2005. House Bill 2320 recommended deleting subsections (A)–(F). This would have the effect of removing the enumerated list of crimes and thus foreclosing all domestic violence crimes from a civil compromise. The bill did not leave committee and did not become law; however, the committee hearing confirms that ORS 135.703 did not prohibit all civil compromises of domestic violence cases. For example, staff counsel Heidi Mowad summarized that “[w]hat this bill would do would take any crime against a family member or household member . . . . and say they cannot be civilly compromised.” H.B. 2320: Hearings on H.B. 2320 before the Subcomm. on Criminal Law of the House Judiciary Committee, Tape 58, side A (May 10, 2005). There would have been no need for this bill if ORS 135.703 already prohibited civil compromise of all domestic violence crimes.

Thus, the legislature thus set out two requirements that must be met before a civil compromise is prohibited: First, the crime must be against an alleged victim who falls into a category of people set out in subsection (d) (family/household, elderly, or disabled); second, the crime charged must have been enumerated in subsections (A)–(F), all of which are person crimes. A civil compromise is prohibited only if both of these requirements are met, and any other non-enumerated DV crime is eligible for a civ comp.