Narrowing Broadly Written Statutes (sex crime edition)

by: Ryan Scott • May 29, 2024 • no comments

Assume a statute says either party can do X. That means you can do X, right?

Maybe. Some statutes are very poorly drafted, and what the statute says you can do isn't exactly what the legislature intended when they passed the statute.

On April 11th of this year, the Oregon Supreme Court dealt with this in the context of felony computer crime. The case was State v. Azar. This statute is very broadly written. And it was written in the mid-80s, when the legislature's understanding of how computers would be a part of our daily lives, especially via the internet, forty years later. So while it's true that the legislature will sometimes intend to address an issue with a statute that covers far more ground than the specific issue they are trying to address, nevertheless, it's hard to argue that they intended it to cover ground they couldn't even imagine.

Consequently, there are times when it is necessary to look at the legislative history to determine whether the legislature in fact intended something far less than the face of the statute would seem to allow. To put it another way, if certain behavior appears to be criminal based on the face of the statute, sometimes you have to look below the surface to see if that behavior is in fact what the legislature intended to make criminal.

We resolve that question under the framework set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Our goal is to determine the intent of the legislature that enacted that provision. Id. at 171. In making that determination, we consider the disputed statutory text in context, together with any available legislative history that we find helpful. Id. at 172. If a statute's intended meaning remains unclear to us following our examination of its text, context, and legislative history, we may turn to general maxims of statutory interpretation for additional guidance. See, e.g., Chaimov v. Dept. of Admin. Services, 370 Or 382, 398 n 7, 520 P3d 406 (2022) (noting limited circumstances in which it may be appropriate for courts to consider general maxims of statutory interpretation).

Azar at ____.

As you may note, Gaines was passed in 2009. Prior to then, if the statute wasn't facially ambiguous, you couldn't dive into the legislature history. You were stuck with the face of the statute.

Getting back to my original question. Statute says you can do X. But whether you can do the specific thing you want to do, you have to ask yourself, is this specific thing what the legislature intended to allow you to do?

Which brings us to the child hearsay exception to the hearsay rule.

On its face, it appears to allow a party (invariably the prosecution) to offer hearsay statements of the complainant witness regarding abuse. That could include not just the original disclosure, but also the forensic interview, the Grand Jury testimony and/or prior trial testimony. Very broadly written statute. But as the appellate courts have dived into the legislative history, they discovered that the statute was intended to permit "disclosures," though that word itself is not in the statute. In State v. Hobbs, 218 Or App 298 (2008), the Oregon Court of Appeals examined the legislative purpose for the 1991 amendment to OEC 803(18a)(b) allowing a statement “concerning an act of abuse,” rather than only a statement that “describes an act of sexual conduct.” Hobbs, 218 Or App at 304. The court described at length the legislative testimony of the person who suggested the change, a representative of the Oregon District Attorneys Association. Hobbs, 218 Or App at 305. According to the witness, “some of the most compelling evidence is how did the child go about disclosing the abuse? Who did they tell? What were the circumstances when they told? * * * What was the child’s demeanor at that time?” From that testimony, the court concluded that “the legislature intended [by adopting “concerning an act of abuse”] to allow the trier of fact to assess a victim’s credibility by evaluating the way in which the victim disclosed the abuse.” Hobbs, 218 Or App at 306.

Thus, Hobbs determined that the legislative purpose of OEC 803(18a)(b) is to allow a complainant’s disclosure of alleged child abuse in view of the evidentiary value of enabling the trier of fact to evaluate the manner of the disclosure, including the complainant’s credibility when disclosing. The plain and dictionary meaning of the verb “disclose” is “to make known or public” or “to expose to view.” Merriam-Webster Dictionary online. After something has been made known or public or exposed to view, it is no longer unknown to the public or hidden from view, so any repetition is not disclosure. And because repetition is not disclosure, under Hobbs, it is not a statement concerning an act of abuse.

At least that is the argument the defense should be making. Forensic interviews, Grand Jury testimony, prior trial testimony, isn't what the legislature intended when it decided juries would benefit from hearing the manner of the original disclosure. Will the appellate courts eventually agree with that argument? I don't know. But it's a sound argument, and it's one that defense attorneys should make routinely.

Fair warning, however. Prosecutors will scoff. They will predictably rely on the face of the statute and maybe not even try to reconcile the legislative history on the purpose of the statute and the evidence that they seek to offer. But if you've been a defense lawyer for more than five minutes, you aren't going to be deterred by a prosecutor scoffing.