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The first hurdle of civil compromises

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by: Ryan • February 4, 2012 • no comments

This post seeks to answer two questions. Can Felony Hit and Run be compromised civilly? Can Encouraging Child Sexual Abuse in the 2nd Degree be compromised civilly?

The crime that you seek to be civilly compromised must have a victim. The court of appeals made this explicit in State v. Sumerlin, 139 Or App 579 (1996).

ORS 135.703 et seq. are related provisions here. Those statutes allow the "civil compromise" and dismissal of certain misdemeanors "for which the person injured by the act constituting the crime has a remedy by a civil action." State v. Van Hoomissen, 125 Or.App. 682, 683, 866 P.2d 521,rev. allowed, 319 Or. 273, 877 P.2d 1202 (1994). Although reckless endangering is not explicitly designated as an offense subject to compromise, the statute specifically provides that reckless endangering cannot be compromised when committed by "one family or household member upon another family or household member" or upon an "elderly person." ORS 135.703(1)(d)(D). By explicitly disallowing the compromise of reckless endangering in cases of domestic violence or elder abuse, the legislature has implicitly demonstrated an intent to allow it in all other cases. Civil compromise only applies, however, to crimes having "a discrete victim or victims" and not to offenses committed against the public at large, such as public indecency and reckless driving. Van Hoomissen, 125 Or.App. at 683, 866 P.2d 521; State v. Dugger, 73 Or.App. 109, 112-13, 698 P.2d 491 (1985). Therefore, it must follow that, as a crime subject to civil compromise, reckless endangering has "a discrete victim or victims." Because defendant's nephews were both in the car, his reckless conduct endangered two discrete victims.

I think it's worth looking at the statutory exceptions to compromise.

135.703 Crimes subject to being compromised; exceptions. (1) 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: (a) By or upon a peace officer while in the execution of the duties of office; (b) Riotously; (c) With an intent to commit a crime punishable only as a felony; or (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; or (F) Strangulation under ORS 163.187. (2) Notwithstanding subsection (1) of this section, when a defendant is charged with violating ORS 811.700, the crime may be compromised as provided in ORS 135.705.

Offhand, I don't see any reason ECSA II can't be compromised*, if the children in the photos are in fact victims. Now, I have long said I don't think the children in the photos are victims of ECSA (although they are victims of the abuse), because I think the crime is designed to discourage future crimes of sexual child abuse (that is, by distributing or possessing child porn, a defendant helps to create a market for the product, which in turn "encourages" more people to create that product.) Prosecutors insist I am wrong in that analysis, and let's say I am. Aside from the technical difficulties of locating the victims (which isn't always so difficult), the legislature has not - at least in my cursory review of the relevant statutes - prohibited compromising the crime of ECSA in the 2nd or 3rd degrees (C felony and A misdemeanor, respectively).

One other observation about child porn. The same child porn (or, for that matter, the same porn) that people look at now, they will be looking at 100 years from now. It's the nature of digital imagery. By then, the children in the images will have long been dead. I don't believe Oregon law allows a dead person - if their death predates when the crime occurs - to be a victim. If I'm right, this has significant consequences for the sentencing of both ECSA and ID Theft.

The next question is whether felony hit and run (when it's a C felony) can be compromised. A year ago, I would have said no. But that's when the appellate courts seemed to believe that Felony Hit and Run had no discrete victim, but was rather a crime against society at large. But the COA has ruled that in fact Felony Hit and Run does have a discrete victim, in a case called St v. Moncada. As I discussed here , I believe this allows us to seek a civil compromise of a charge of felony hit and run. If you attempt to do so, and the judge refuses on the grounds that it is a crime that can't be compromised, I strongly urge you to seek a petition for a writ of mandamus.