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The Class of Victims for Identity Theft: Updated

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by: Ryan • March 4, 2011 • no comments

Update 3/17/2011: I'm trying to find a way to make this argument more easily understood. Let's see if this helps.

The Theft of Identity statute creates two classes of possible victims. (1) The person who might be deceived or defrauded and (2) the person whose identity was used. The person who might be deceived or defrauded must be a real, existing person or business, but the statute which defines the "person" whose identity was used has explicitly included in the definition real, imaginary and dead people.

We - lawyers, judges, police - are stuck with those two classes. We can't change what the legislature has created. Determining who the victim is - which impacts merger, the 200% rule and more - requires determining which of the two classes of persons created by the statute was the class the legislature was trying to protect when it created the statue. But when the state wants to say that only "real persons" whose identity is taken are victims, they are creating a sub-class that does not exist anywhere in the statute. Imagine if the legislature made it a crime - as it has - to possess photographs of naked children under 18. The defendant possesses photos of twenty different naked 17 year olds. But all of them were taken in Vancouver, where the age of consent is 16, so the 17 year olds are not "victims" of sex abuse. Well, a judge cannot say that the only class of victims identified by the statute are Oregonians under 18 or Washington residents under 16. The judge can't create a smaller sub-class that the statute doesn't identify. Either everyone in the class is a victim or no one is.

Since the class of person whose identity was taken includes imaginary people, and we know imaginary people cannot be victims, then we know that class isn't the class the legislature intended to protect. More likely, the legislature intended to protect those persons who might be defrauded, which may include the person whose identity was taken but doesn't have to.

Ergo, if the defendant has twenty fake IDs, in twenty different names, but the person(s) who will be defrauded cannot be identified, all the counts merge into a single conviction.

Let's assume that a defendant has in his possession 50 fake ID cards, each one has the name of a different person.

That defendant is then charged with and found guilty of 50 counts of Identity Theft. Do all the counts merge into a single conviction?

The answer depends on who is the victim of Identity Theft. If each "person" named in the ID card is a victim, then there are 50 convictions. If the person or the business who is going to be defrauded or deceived is the victim, there is a separate conviction for each defraudee who can be identified. See State v. Graves, 92 Or App 642, 759 P2d 1121 (1988) (concluding that a defendant who conspired to have nine checks belonging to Paramount Business cashed a nine different banks was properly convicted of nine counts of forgery because the nine banks were the victims of the conspiracy; Paramount Business, on the other hand was not a victim). If the "state" is the victim, because the crime of Theft of Identity is intended to address a general harm, not specific injuries, then there will be only one conviction.

You might think, well, duh. The answer is in the title. "Theft of Identity." The victim is the person whose identity is taken, therefore 50 different convictions.

Except . . . what if the person is imaginary? Obviously, no harm can befall an imaginary person. The legislature is unlikely to be motivated by protection of the interests of imaginary people. And the "person" whose identity is taken has been defined by statute as either real, imaginary or dead. ("Dead" people also present an interesting intellectual challenge. Can Abraham Lincoln be a victim in 2011 of Identity Theft?)

Okay, you say, fine, no imaginary people are victims. So we just make a rule that the victim of ID Theft is any person whose identity is taken who is also real (and we'll put off the "dead" issue for later). Therefore, every ID card that the above defendant possessed that had the identity of a real person is the basis for a separate and distinct conviction.

Ah, but. . . there's a problem there too. And for this problem, we have to go to a case, State v. Moncada, ___ Or App ___ (March 2, 2011), which just came out last week. The Moncada court had to decide who was a victim of Felony Hit and Run, and it said:

"We glean a single, salient principle from Glaspey and Luers, which informs the outcome in this case: Where the statute defining a crime does not expressly identify the person who qualifies as a "victim," the court examines the statute to identify the gravamen of the crime and determine the class of persons whom the legislature intended to directly protect by way of the criminal proscription." [Emphasis added.]

The phrase "class of persons" is crucial. It doesn't just say "persons," which might suggest anyone injured. The court must decide who is the "class of persons" the legislature intended to protect.

The problem is, any "class of persons" who the legislature intends to protect cannot reasonably include imaginary people for reasons that are briefly discussed above but also self-evident. And the Theft of Identity statute creates a single class of persons whose identity is taken, which includes real and imaginary people. In order to find that the statute was intended to only protect the identity of "real persons," you would have to create a separate and distinct subcategory of persons (real persons) that the statute itself does not single out in any way. In other words, if we are limited by the "class of persons" created by the statute, and the class of persons whose identity is taken includes imaginary people in the class, then both real and imaginary people are the intended victims of Identity Theft (which is absurd) or a different class of persons is. The court can't create a unique subcategory of victims that the statute itself doesn't create.

Thus, we are left with the more likely possibility that the class of persons that the crime is intended to protect is the class of people who are (or are going to be) deceived or defrauded. See "New Research Shows Identity Fraud Growth Is Contained and Consumers Have More Control Than They Think," January 31, 2006, Council of Better Business Bureau Inc 2003, (retrieved April 16, 2008) (concluding that business bear approximately 85% of the cost of identity theft).

In light of the analogous Graves holding, which is cited above, there is precedent for determining that the real, existing business or person who is defrauded is the victim of Identity Theft, not the person (perhaps real, perhaps imaginary) who may not suffer any harm at all, even assuming they exist.

Thus, if the state can show that the defendant above intended to defraud 50 different businesses, he gets 50 different convictions. If they cannot identity who the victims would have been, but they have proven there was going to be one, then he ends up with a single conviction.