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animals, the dead, the uninjured

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by: Ryan • August 1, 2012 • no comments

Who is the victim of reckless endangering? Is it the state, in the same way the victim of reckless driving is the state? Or is it the person who is endangered?

Trick question. The COA has said it can be both.

Because reckless endangering can be compromised, the COA has said there is a discrete victim of the crime. State v. Sumerlin, 139 Or App 579.

But note that State v. Sumerlin cites legislative history that says the recklessly endangering statute "covers potential risks as well as cases where a specific person is within the zone of danger." 139 Or App at 587 n 7.

Sumerlin predates the opinions in St v. Glaspey and St v. Luers, both of which hold that -- for the purposes of merger -- determining the "class of victim" is one of legislative intent. In other words, in a felony assault IV based on a child witness, the legislature has decided categorically that the victim of Assault IV is the person who is injured, but not the child witness. It does not matter that the state could prove psychological harm to the witness-child, because -- for the purposes of merger -- the specific facts don't matter, only whether the child-witness falls into the class -- or category -- of victims intended by the legislature.

Consequently, I think there is a question whether Sumerlin is good law, because -- in light of Luers and Glaspey, which I admit is more a matter of emphasis than a dramatic change in the case law -- I'm not convinced that current case law allows this kind of straddling: sometimes the class of victims is a real person, sometimes it's the public at large, and whether it's one or the other is a factual question.

Today, the COA reiterated the "class of victims" analysis:

ORS 167.325 does not expressly identify the victim of a violation of the prohibition of animal neglect. Neither do any of the related statutes that prohibit more serious instances of neglect. See, e.g., ORS 167.330 (animal neglect in the first degree); ORS 167.320 (animal abuse in the first degree); ORS 167.333 (sexual assault of an animal). Accordingly, "'[we] examine[ ] the statute to identify the gravamen of the crime and determine the class of persons whom the legislature intended to directly protect by way of the criminal proscription.'" Torres, 249 Or App at 577 (quoting State v. Moncada, 241 Or App 202, 212, 250 P3d 31 (2011), rev den, 351 Or 545 (2012)) (brackets in Torres). [Bold added.]

Today's opinion -- in a great service to judges and lawyers -- then goes on to discuss quite thoughtfully how it determined whether the "victim" of animal neglect was the animal neglected or the state at large.

As the court noted, "Our conclusion that the legislature intended to protect animals when it enacted ORS 167.325 is not the end of the inquiry, however, because it does not inexorably follow from that conclusion that the legislature intended for animals to be victims."

This is a great quote, because it highlights a distinction that is often hard for people to grasp.

In discussing its prior case law, the COA noted that it previously found the "public at large" to be the victim of the crime of Initiating a False Police Report, stating:

Because ORS 162.375 did not require the element of actual harm to a particular person, we concluded in Goodness that the victim was the public at large. Goodness, 224 Or App at 576.

In its conclusion following review of the statutes and legislative history, the Nix Court decided that animals were victims of the animal neglect statute:

That testimony, together with the quoted staff measure analysis, support the conclusion that, although the broader public interest also was at play, the specific purpose of protecting individual animals from neglect was at the heart of the legislation.

The Court of Appeals faced a similar choice in St v Reeves, when it held that children who were depicted in child porn that was downloaded were in fact victims, so multiple counts of Encouraging Child Sexual Abuse based on images of different children would not merge.

The problem that the Reeves court did not address is that -- politically incorrect as it may be to say this -- the child depicted in child porn is not a victim just because the porn is downloaded years or decades after the porn was created.

First, morally, I think it is wrong to see the victims of child porn -- who are no doubt victims of the creation of child porn -- as being victims in perpetuity, forever being victimized whenever someone somewhere on the planet looks at their image. But I'll leave that philosophical debate for another time.

The problem for the Reeves court -- as much as we might sympathize with the children (or former children) depicted in the photos -- there is no actual harm that the Court can point to by downloading the pictures years after the fact. And we know this because child porn is criminal even if the victim has been dead a hundred years. If we found some photos of a pre-pubescent Abraham Lincoln, would any of us say that Lincoln was a victim of anyone who downloaded the image onto their computer? I know that sounds horribly glib, for such a serious topic, but it is the COA that has said yes, Lincoln is a victim of Oregon law in that circumstance.

And let's be honest, the porn that is created today will be viewed 100 years from now.

This all gets us back to whether -- as the Sumerlin court held before Glaspey and Luers -- the legislature can intend a "class of victims" that includes people who are utterly beyond harm, including dead people and imaginary people (as in the crime of Identity Theft). Assuming imaginary people can't be victims, nor people who died decades before the crime was committed, the class would include specific victims and the public at large, and it's a factual question whether the "victim" in any particular case might be one or the other.

Again, I don't know if the current case law analysis permits that kind of straddling, but I'd certainly like to see one of our appellate courts address it.