Statutes with Vertical Proportionality Problems
by: Ryan • February 2, 2011 • no comments
I have noted before that sexual abuse in the second degree - which, after St v. Stamper, criminalizes otherwise consensual sex with a 17 year - is a crime seriousness 7 on the sentencing grid, but rape in the third degree - which criminalizes otherwise consensual sex with a 14 year old - is a 6. This is aside from the fact that we already have a statute that explicitly criminalizes sex with a 17 year old - Contributing to the Delinquency of a Minor - which is a misdemeanor.
That is not the only statute with a potential problem.
The crime of "possession of a precursor substance with the intent to manufacture" - which is another way of saying "attempted manufacturing" - is a 6 CSL but manufacturing itself - absent any enhancement factors - is only a 4.
Online sexual corruption in the 2nd degree - a statute that is rife with constitutional problems, the subject of a future essay - prohibits a defendant from "unlawfully and for the purpose of arousing and gratifying a person's sexual desire, knowingly [using] an online communication to solicit a child to engage in sexual contact and offers or agrees to physically meet with the child."
A "child" is defined in ORS 163.431(1) as "a person who the defendant reasonably believes to be under 16 years of age." The implication of that definition is a person can be guilty of the crime if the "child" who is solicited is in fact an adult, as long as the defendant believes him or her to be a child.
This implication is made explicit in ORS 163.434(2), which states that "[it] is not a defense to a prosecution for online sexual corruption of a child in the first or second degree that the person was in fact communicating with a law enforcement officer, as defined in ORS 163.730, or a person working under the direction of a law enforcement officer, who is 16 years of age or older."
Online sexual corruption II is a 6 CSL. In other words, attempting sexual contact over the internet to someone the defendant thinks is 15 - which would be attempted rape in the 3rd degree if the defendant attempted intercourse rather than merely sexual contact - is a 6, but actually having sex with a 14 or 15 year old is also a 6. (Attempted rape III would be a 4 CSL.) The response to this is that the internet makes it more . . . something . . . dangerous? scary? . . . but how is it better if the defendant is hanging out at the mall or a schoolyard? No, what this really is is a law that was drafted with little thought or care during the height of the "To Catch a Predator" hysteria.
Why is this a problem?
In State v. Wheeler, 343 Or 652 (2007) (en banc), the Oregon Supreme Court conducted an exhaustive review of the history and meaning of the proportionality clause set forth in Article I, section 16, of the Oregon Constitution. Wheeler held that "the framers' concern was that the penalty imposed on a criminal defendant be 'proportioned' to the specific offense for which the defendant was convicted-that it bear the appropriate 'comparative relation' to the severity of that crime." Id. at 667.
The Court went on to note that only twice had the Court found proportionality violations, and "[b]oth cases involved situations in which the penalty for a lesser-included offense was greater than the penalty for the greater-inclusive offense." Id. at 674. The Court concluded that "the proportionality provision bars the legislature from punishing a lesser-included offense . . . more severely than the greater-inclusive offense . . . ." Id. at 677.
The final example may be the most absurd. Possession of marijuana is a B felony in Oregon. Giving marijuana away - i.e., delivery of marijuana for no consideration - is a less-serious C felony.
