Some Sex Crimes May Now Be Expunged

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

by: Abassos • June 23, 2013 • no comments

The legislature recently passed a bill that allows some sex crime convictions and adjudications, under fairly narrow circumstances, to be set aside (aka expunged). HB 3327. The new law has an emergency clause, so it is already the law of the land. Here's how it breaks down:

There's the easier path that runs through ORS 181.830, the sex offender registration relief statute for lower level sex crimes. And there's a path, for "C felonies", that is so narrow and obscure that most defense attorneys are unlikely to ever run across a single eligible case.

The Easier Path

A conviction for Sex Abuse III, Contributing to the Sexual Delinquency of a Minor, Rape III or Sodomy III is eligible for expungement in the normal course if the person has been given relief from registration, pursuant to ORS 181.830, and has neither a conviction nor an adjudication for a crime that is ineligible to be set aside. Of course, there are additional requirements required to gain relief from registration under ORS 181.830, a prerequisite for set-aside via this subsection. Namely:

• there must have been less than 5 years of difference in age between the defendant and the victim.
• the victim must have been at least 14 years old.
• lack of consent must have been solely based on the age of the victim.
• there must only have been one victim on which the convictions or adjudications are based.
• the person may not have any other sex crime convictions or adjudications, aside from the one(s) eligible for relief.

While this path is easier than the other path below, it still excludes most situations. But it includes enough situations that it is important for defense attorneys to be aware of the possibility and check with each individual case to see whether it might be a situation that will be or is eligible to be set aside.

One particularly noteworthy point is that it appears that if the person seeking set-aside has any other conviction that is ineligible for expungement, it is a bar to set-aside under this subsection. For example, a thirty-year-old conviction for a misdemeanor traffic offense would make one ineligible for set-aside under this new provision. That seems unnecessarily broad, even for a politically sensitive issue such as sex crime convictions. My reading is dependent upon the bill's use of the word "section" in (b)(B) below, which stands in direct contrast to the use of the word "subsection" within the same few paragraphs. For example, "Notwithstanding subsection (5)" is the phrase used at the beginning of subsection (8), the subsection being modified to allow for set-aside of some sex convictions. Since "section" has to be broader than "subsection", "section" must at least refer to subsections (1) through (27) of ORS 137.225, the set aside statute. Also, the bill at issue has delineated "sections", the relevant one of which includes the entirety of ORS 137.225.

The Extremely Narrow Path

A conviction for a C felony sex crime may also be eligible for set-aside, but only under very narrow circumstances. At the time of the crime, the defendant has to have been under 16 and the victim has to have been at least 12, with the difference between their ages being less than 3 years. The lack of consent has to be solely due to age. And there can't be more than one victim or any convictions for crimes that are ineligible to be set aside.

If there is a non-trivial population of potentially eligible people that I'm missing, please let me know.

There is also a section allowing for juvenile adjudications to be set aside. I've included the relevant section of the bill below, but this article only addresses adult convictions.

Here is the actual language from the new bill:

(b) A sex crime listed in ORS 181.830 (1)(a) [is eligible] 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.

(c) A sex crime constituting a Class C felony, [is eligible] if:

(A) The person was under 16 years of age at the time of the offense;

(B) The person is less than three years older than the victim;

(C) The victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age;

(D) The victim was at least 12 years of age at the time of the offense;

(E) 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; and

(F) Each conviction or finding described in this paragraph involved the same victim. . .

. . .(9) Notwithstanding ORS 419A.260 (1)(d)(J)(x), (xiii) or (xviii), a person who has been found to be within the jurisdiction of the juvenile court based on an act that if committed by an adult would constitute:

(a) Rape in the third degree under ORS 163.355, sodomy in the third degree under ORS 163.385 or sexual abuse in the third degree under ORS 163.415, or an attempt to commit those crimes, may apply for an order of expunction under this section. The court shall order expunction of the records in the case if, after a hearing when the matter is contested, the court finds that the person:

(A) Meets the requirements of subsection (2) of this section;

(B) 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

(C) 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 listed in ORS 419A.260 (1)(d)(J), other than the adjudication that is the subject of the motion.

(b) A sex crime that is a Class C felony may apply for an order of expunction under this section. The court shall order expunction of the records in the case if, after a hearing when the matter is contested, the court finds that:

(A) The person meets the requirements of subsection (2) of this section;

(B) The person was under 16 years of age at the time of the offense;

(C) The person is less than three years older than the victim;

(D) The victim’s lack of consent was due solely to incapacity to consent by reason of being less than a specified age;

(E) The victim was at least 12 years of age at the time of the offense;

(F) Each finding described in this paragraph involved the same victim; and