Who is a Victim? Or, do imaginary people have a right to be notified of the next court date?

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

by: Ryan • December 28, 2010 • no comments

Earlier this week, Alex posted motions objecting to any prosecutorial (or judicial) references to the complaining witness as "the victim." In many trials, whether there even is a victim is in dispute. By referencing a "victim," the prosecutor is vouching in a way that is generally considered impermissible.

There are related questions regarding what the definition of victim is. Is the state a victim? Certainly you'll find references to the state as a victim in the case law, but the definition does not universally hold true. The Oregon Constitution has a definition of victim that would not include the state, but does include any person the prosecutor says is a victim. Then there's a question whether dead people can be victims if they died before the crime was committed. Or imaginary people.

This post will not do an in-depth analysis of the issue but merely highlight different places where the definition of victim is different in different contexts. In a couple of places, I'll highlight some immediate consequences of those definitions.

1. Oregon Constitution, sections 42 and 43 (definition limited to those sections): (c) "Victim" means any person determined by the prosecuting attorney or the court to have suffered direct financial, psychological or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor.
2. Hit and Run: The victim is "the state," not the person who is injured, because the crime is running away, not causing the injury. State v. Duffy, 33 Or App 301 (1978) and State v. Eastman/Kovach, 292 Or 184, 189-90, 637 P2d 609 (1981) Thus, four people injured, four counts of Felony Hit and Run, no human victim and therefore, there should only be one conviction. UPDATED: AU CONTRAIRE, SAYS THE COA. CONTRARY TO THE AFOREMENTIONED CASE LAW (AND WITHOUT ACKNOWLEDGING THAT CASE LAW), THE COA HELD THAT THE PERSON INJURED IS IN FACT THE VICTIM OF HIT AND RUN. BUT THIS COULD BE GOOD NEWS, AS IT NOW MIGHT MAKE IT POSSIBLE TO CIVILLY COMPROMISE A FELONY HIT AND RUN. Is Felony Hit and Run Now Compromisible? .
3. Merger statute, ORS 161.067: the state is NOT a victim. "[As] we have previously recognized, the state is not a "victim" for purposes of ORS 161.067. See State v. Ott, 96 Or App. 511, 514, 773 P2d 19, rev den, 308 Or 382, 780 P2d 735 (1989) ("[F]or purposes of ORS 161.062(4), the term 'victim' does not encompass * * * the state.")."

State v. Camarena-Velasco, 207 Or App 19, 22-23 (2006)

The implication of this case law is that the state is also not a victim for purposes of the shift-to-I rule, the 400% rule or the 200% rule, none of which apply when there are multiple, genuine victims.

1. The child in the photos of Encouraging Child Sex Abuse: May or may not be a victim. State v. Betnar: "The issues raised by the parties' arguments is how many victims were involved in defendant's crimes. That is, it is not clear whether-when multiple charges are based on images of different children-ORS 163.684 contemplates that there was one victim or more than one victim, or whether the statute is intended instead to promote the general welfare of children, rather than to address a criminal act committed against a particular person. Because ORS 163.684 is subject to all of the above interpretations, it is not clear which subsection of ORS 161.067, if any, governs the merger issue in this case. No Oregon case has addressed that issue, and the answer is not obvious."

If the child - who might have passed away decades before the photo was possessed by the defendant, an inevitable situation in this age of the internet - is not a victim, then there aren't multiple victims, and therefore multiple counts of this crime, if they come from the same criminal episode, all merge.

1. Victim for purposes of Restitution: ORS 137.103(4) "Victim" means:

"(a) The person against whom the defendant committed the criminal offense, if the court determines that the person has suffered economic damages as a result of the offense.

(b) Any person not described in paragraph (a) of this subsection whom the court determines has suffered economic damages as a result of the defendant's criminal activities."

But. . . .

1. The estate of a victim who dies before restitution is paid: NOT a victim Therefore, the defendant should not have to pay restitution. (Different rules apply if the defendant killed the victim.)
2. Forgery: the victim is NOT the person or business whose name was forged but the person or business who was going to be defrauded. State v. Graves, 92 Or App 642, 759 P2d 1121 (1988)
3. ID Theft: the name used in any ID Theft can be a real person, a dead person or an imaginary person, per statute. But are such people victims? Okay, you might concede that Mickey Mouse is not a victim (though I still wouldn't want the Disney Corporation mad at me). But is Abraham Lincoln a potential victim? If you say, "only real people are victims of ID Theft," that too raises a difficult problem. It means for every ID Theft, there is a factual question regarding whether a victim exists or the identity belonged to an imaginary or dead person. If a real person, you'd say, it's a victim. If imaginary, no victim. But that would seem at odds with the case law (such as St v. Glaspey and St v. Luers) that holds that whether there is a victim is not a fact question but one of legislative intent. Assuming the crime has been proven, does Oregon law allow situations where sometimes there is a victim, sometimes not, depending on the facts of the case, and if so, is that a jury question? (Keep in mind as well that the Oregon definition of ID Theft does not require any injury. It does not even require any intent to injure. And often the person whose identity is stolen is never a witness in an ID Theft trial.) Perhaps ID Theft falls into the category, to paraphrase the Betnar court, where the statute is intended to promote the general welfare but not address the harm to a specific individual (such harms already addressed by theft and other statutes). The COA has not - to date - addressed this issue head on.

If there is no legislative victim of ID Theft, then multiple counts from the same criminal episode would merge.