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In an earlier blog post, I argued that when a defendant downloads CSAM for his own personal use and there is no evidence of an intent to distribute, he should be subject to an ECSA II sentence rather than the ECSA I sentence that results from COA's anachronistic interpretation of duplication. https://libraryofdefense.ocdla.org/Blog:Main/Framing_the_proportionality_argument_for_ECSA_I More specifically, ECSA I -- which was intended to target distributors of child porn -- can be charged when a defendant duplicates child porn, because at the time the statute was written, the only reason for duplicating a film or still photograph was to distribute it. But the COA has interpreted mere downloading as a form of duplication, and therefore downloading -- even if for strictly personal use -- satisfies the elements of ECSA I despite capturing defendants who are simply consumers of child porn.

In sum, ECSA I criminalizes a wide swath of behavior, including behavior that is not meaningfully different than behavior fully covered by ECSA II. It is therefore disproportionate under Article I, section 16, of the Oregon Constitution to punish someone as a distributor when they are exclusively a consumer.

This is an as-applied argument, not a strict virtual proportionality argument, because the facts matter. In this case, the facts would be the absence of any evidence defendant had an intent to distribute.

I believe a similar dynamic arises in the contest of DCS w/in 1000 feet of a school. A wide swath of behavior is captured by this charge, from dealing directly in front of high school or grammar school during school hours, to possessing w/ intent in a residence that happens to fall w/in 1000 feet of property owned by the school district (even when school is out of session).

Since there are circumstances where a charge of DCS w/in 1000 feet of a school is based on a mere technicality and not on any increased risk to children, the behavior is more like a straight DCS and should be sentenced accordingly.

In Richards v. Brown, 345 Or. App. 321 (2025), the Court of Appeals held that a jury could only reject an extreme emotion disturbance (EED) defense to murder if at least ten of them rejected it. Prior to that decision, if nine jurors believed the defendant was operating under EED at the time, but three didn't, the defendant was guilty of murder.

"It bears emphasis that, even though EED is only a partial defense, it is still an affirmative defense. Proving it renders a defendant not guilty of second-degree murder and guilty, instead, of first-degree manslaughter. An EED finding quite literally precludes a guilty verdict on second-degree murder. Therefore, under ORS 136.450 (2019), just as ten jurors had to concur on the elements in order to render a guilty verdict for second-degree murder, ten jurors had to concur that petitioner had not proven her affirmative defense."

Richards, 345 Or App at ___.

Great opinion, but why does the headline of this post say it now has to be a unanimous rejection. Because the statute has changed. As the Richards court noted in fn 8:

"We recognize that, under the current version of ORS 136.450, it may be that a jury must unanimously reject the EED defense to arrive at a general guilty verdict in a second-degree murder case. ORS 136.450(1) ("(1) A jury in a criminal action may render a verdict of guilty only by unanimous agreement.")."

Id. at ___.

By the way, even though EED is only a defense to murder 2, don't forget to argue that, under the Oregon Constitution, it justifies a lower sentence for attempted murder. https://libraryofdefense.ocdla.org/Blog:Main/Applying_EED_at_Sentencing_to_Attempted_Murder

In 1985, the Oregon legislature created a graded scheme of criminal liability aimed at ending child sexual abuse. The statutory scheme “punishes most harshly the creation of child pornography, next, its distribution, beyond that, its use to promote further abuse of children, and finally, its use in general.” State v. Porter, 241 Or App 26, 34, 249 P3d 139 (2011). Accordingly, like the previous statutes aimed at punishing dissemination of child pornography, the legislature chose the term “duplicate” to capture commercial practices associated with distribution and production. Not to capture conduct associated with possessing or viewing an image—which would be punishable as second-degree conduct.

The legislative history of ORS 163.684(l)(a)(A) makes clear that it was intended to encompass those who “disseminate” and “deal” in child pornography, not those who merely possess it without that intention.

Nevertheless, the Court of Appeals has held that downloading images (which does not necessarily implicate any intent to distribute the images) equals "duplication" under the ECSA I statute.

Consequently, when a defendant downloads images for their own personal use, they are charged under the first degree version of the statute, which was intended to address more than mere possession. In other words, the COA has erased the principal distinction between the acts that form the prohibited conduct is possession and control (that is the second-degree crime) and duplication or dissemination of more child pornography (that constitutes the first-degree offense). State v. Pugh, 255 Or App 357, 365, 297 P3d 27 (2013)

The Oregon Supreme Court has turned down the opportunity to review the COA holding.

So how does this implicate the Proportionality Clause of the Oregon Constitution?

Article I, section 16, of the Oregon Constitution provides that “all penalties shall be proportioned to the offense.” A sentence is constitutionally disproportionate when it shocks the moral sense of reasonable persons as to what is right or proper under the circumstances. State v. Wheeler, 343 Or 652, 656, 669-71, 175 P3d 438 (2007). In determining whether a sentence “shocks the moral sense,” a court considers three factors: “(1) a comparison of the severity of the penalty and the gravity of the offense; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the

defendant.” Rodriguez/Buck, 347 Or at 58. That analysis focuses on the offense to which the claimed disproportionate sentence is applied, not the totality of the defendant’s criminal conduct. State v. Carey-Martin, 293 Or App 611, 621-21, 640, 643, 430 P3d 98 (2018).

The first factor of the Rodriguez/Buck test requires a court to compare the severity of the penalty and the gravity of the offense. Ridriguez/Buck, 347 Or at 58. The severity of a penalty is the amount of time that the wrongdoer must spend in prison or jail, if convicted of that offense. Id. at 60. An “offense” is defined as the general statutory definition of the crime and, in an as-applied challenge, as the convicted person’s particular criminal conduct within the range of the conduct proscribed by the statute. Id. at 62. In comparing the severity of the penalty and the gravity of the offense, a court “may consider, among other things, the specific circumstances and facts of the defendant’s conduct that come within the statutory definition of the offense, as well as other case specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim.”

Rodriguez/Buck informs this court’s application of the first factor in this case. Defendant Rodriquez was convicted of first-degree sexual abuse committed by pulling the back of a thirteen-year-old boy’s head

against her clothed breasts and caressing his face for about a minute. 347 Or at 48. Defendant Buck was convicted of first-degree sexual abuse committed by failing to remove the back of his hand from a 13-year-old girl’s clothed buttocks after she had leaned against him while casting a fishing line and by wiping dirt off the back of her shorts. Id. The trial court in each case determined that a 75-month prison sentence violated the proportionality clause of Article I, section 16 and imposed a lesser sentence. Id. After engaging in the three-factor analysis described above, the Supreme Court concluded that “the imposition of the mandatory 75–month sentence for first-degree sexual abuse, as applied to the facts of Rodriguez’s and Buck’s offenses, would violate the [state] constitutional requirement that the penalty be proportioned to the offense.” Id. at 50.

In considering the first factor, the Rodriguez/Buck court noted that the first-degree sexual abuse statute, ORS 163.427(1), criminalizes a broad range of conduct, “including, but not limited to, momentary touching of an intimate part without the victim’s awareness or knowledge, touching that the victim

apprehends but does not appreciate as sexual, momentary touching over clothing, prolonged hand to genital contact, prolonged skin to skin genital contact, and, of course, forcing a person under 18 to engage in bestiality.” Id. at 69 (internal quotation marks omitted). The court remarked that the Rodriguez/Buck defendants’ conduct was on the outer edge of that conduct. Id.at 75.

Similarly, ECSA I also criminalizes a broad range of conduct. Written in the days prior to the internet, the statute was intended to criminalize the dissemination of child pornography. The consequences of such dissemination was severe.

Furthermore, the introduction of child pornography encourages and sustains a marketplace for such images, often commercializing and commodifying the criminal activity that depends on the continuing victimization of the child.

The severity of the harm is reflected in the punishment. ECSA I is a crime seriousness level 8, so that even someone with no criminal history is presumptively subject to a prison sentence. That sentence becomes exponentially longer with each additional count. However, the Court of Appeals has held that a person can be guilty of ECSA I merely by downloading (“duplicating”) an image for their own personal use, behavior which is more consistent with ECSA II, which is a crime seriousness level 5 on the Oregon Sentencing Guidelines and presumptive probation if the defendant has no criminal history..

In other words, merely downloading an image for one’s personal use does not involve the commodification and ongoing victimization that arises from the dissemination of the images, and therefore the defendant’s behavior is on the outer edge of the conduct made criminal by the statute.

Because defendant’s conduct is comparable to mere possession of the images and ECSA II, and far less severe than the originally intended scope of ECSA I, it is disproportionate to sentence defendant as a level 8 CSL as if he were a distributor of child pornography and not a level 5 CSL, which is more reflective of the nature and seriousness his conduct.