The tacit rule for "category of victims" that the COA resists
by: Ryan • April 24, 2015 • no comments
Yesterday, the Oregon Supreme Court issued an opinion, St v Lykins, reversing the Court of Appeals. It involved identifying the persons that could be considered victims in an OAR relating to upward departures (based on "vulnerable victim").
Regarding the OARs, the opinion is worthwhile and sound. But it's what the OSC tacitly says about the category of victims defined by a criminal statute that I want to focus on. And I want to focus on it, because I think the Court of Appeals doesn't quite get it.
So every criminal statute has a victim. If it isn't a particular person (or animal), the victim is the state. The victim isn't necessarily the person who was harmed by the crime. Rather, as the OSC says -- and has said before:
- Whether the witness tampered with is a “victim” of that crime is a matter of legislative intent. As this court explained in State v. Glaspey, 337 Or 558, 564, 100 P3d 730 (2004), to determine the legislature’s intent, the court “must focus on the words that the legislature chose to use” in the “specific criminal statute that defines [the] criminal offense for purposes of prosecution.”
The implicit rule from Glaspey, which was repeated in Lykins, is that the "victim" of a particular crime is a matter of legislative intent. Implicitly, or tacitly, the victim is a not a fact-based question.
But wait, I hear you say, you can't identify the victim without knowing the facts of the case. How do you know if it's John or Jill or Julie or Jack? Those are factual questions.
True, true, but we're talking about two different things. The legislature determines the "category of victim" and the facts identify the victim within that category.
But the key thing that is implicit in the OSC opinions is that the "category of victim" is not determined by the facts of the case. It is determined by the legislative intent.
The problem is, that rule has been ignored by the Court of Appeals on more than one occasion. The obvious example involves the crime of Identity Theft. The COA has held that the person whose identity is taken is the "victim."
If that's all you know about the statute, that rule seems obvious. But the person whose identity is stolen can be an imaginary person or a dead person. Such persons are beyond the capacity to be harmed, and so they cannot be victims.
Okay, the COA might respond, an imaginary person cannot be a victim, but that's easy enough to fix. If the facts show the person whose identity is taken is real, then she's a victim. If she's not real, then she's not. Easy enough, right?
Except in that situation, the COA would be using facts to identify the "category of victims," which it can't do, because the category of victim is a matter of legislative intent. It's subtle, but look at it this way. COA says the category of victim is the person whose identity is stolen. Unless that person isn't real (a fact question), in which case the category of victim is either the person or business or government agency which was deceived or it was the state if no one at all was deceived (i.e., the defendant was convicted under a theory of possession with intent to defraud but didn't actually defraud or deceive anyone).
No, I don't think it works that way. If the legislature intended the category of victim for ID Theft to be the person whose identity is stolen, then it can't be a different category of victim depending on the factual circumstances. Facts can only tell us who is the victim within the category of victim identified by the legislature.
And since the legislature could not have intended imaginary people to be victims, then the category of victim for ID Theft cannot be the (sometimes imaginary) person whose identity was stolen.
The COA made a similar mistake in Lykins, although that dealt with an OAR, not a statute defining a crime. And it's a very human impulse to make that error. What judge wants a headline saying that the person whose identity is stolen isn't a victim as a matter of law? It just seems to make sense. But the legislature wanted Identity Theft to be as broad as possible. They wanted the defendant to be guilty even when an imaginary person was injured. Eventually, I think the OSC will take review and find that the desire of the legislature to broaden the criminal conduct came at a cost. If we continue to preserve the issue.
