68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3204-4
House Bill 3305
Sponsored by Representative BROWN (at the request of Oregon
Children's Justice Act Task Force)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Decreases penalties for statutory rape. Enhances penalty for
contributing to sexual delinquency of minor if pregnancy results.
A BILL FOR AN ACT
Relating to sexual delinquency; amending ORS 131.125, 137.225,
163.345, 163.435, 181.662, 342.143, 342.175, 419A.250,
419A.260, 421.455 and 421.502 and section 51, chapter 790,
Oregon Laws 1989; and repealing ORS 163.355 and 163.365.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.435 is amended to read:
163.435. (1) A person 18 years of age or older commits the
crime of contributing to the sexual delinquency of a minor if:
(a) Being a male, he engages in sexual intercourse with a
female under 18 years of age; or
(b) Being a female, she engages in sexual intercourse with a
male under 18 years of age; or
(c) The person engages in deviate sexual intercourse with
another person under 18 years of age or causes that person to
engage in deviate sexual intercourse.
(2) Contributing to the sexual delinquency of a minor is a
Class A misdemeanor.
{ + (3) Notwithstanding subsection (2) of this section,
contributing to the sexual delinquency of a minor is a Class C
felony if the victim becomes pregnant as a result of the sexual
intercourse. + }
SECTION 2. ORS 131.125 is amended to read:
131.125. (1) A prosecution for murder or manslaughter may be
commenced at any time after the death of the person killed.
(2) A prosecution for any of the following felonies may be
commenced within six years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 24 years of age or within six
years after the offense is reported to a law enforcement agency
or other governmental agency, whichever occurs first:
(a) Criminal mistreatment in the first degree under ORS
163.205.
{ - (b) Rape in the third degree under ORS 163.355. - }
{ - (c) Rape in the second degree under ORS 163.365. - }
{ - (d) - } { + (b) + } Rape in the first degree under ORS
163.375.
{ - (e) - } { + (c) + } Sodomy in the third degree under
ORS 163.385.
{ - (f) - } { + (d) + } Sodomy in the second degree under
ORS 163.395.
{ - (g) - } { + (e) + } Sodomy in the first degree under
ORS 163.405.
{ - (h) - } { + (f) + } Unlawful sexual penetration in the
second degree under ORS 163.408.
{ - (i) - } { + (g) + } Unlawful sexual penetration in the
first degree under ORS 163.411.
{ - (j) - } { + (h) + } Sexual abuse in the second degree
under ORS 163.425.
{ - (k) - } { + (i) + } Sexual abuse in the first degree
under ORS 163.427.
{ - (L) - } { + (j) + } Using a child in a display of
sexual conduct under ORS 163.670.
{ - (m) - } { + (k) + } Dealing in depictions of a child's
sexual conduct under ORS 163.673.
{ - (n) - } { + (L) + } Incest under ORS 163.525.
{ - (o) - } { + (m) + } Promoting prostitution under ORS
167.012.
{ - (p) - } { + (n) + } Compelling prostitution under ORS
167.017.
(3) A prosecution for any of the following misdemeanors may be
commenced within four years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 22 years of age or within four
years after the offense is reported to a law enforcement agency
or other governmental agency, whichever occurs first:
(a) Sexual abuse in the third degree under ORS 163.415.
(b) Furnishing obscene materials to minors under ORS 167.065.
(c) Sending obscene materials to minors under ORS 167.070.
(d) Exhibiting an obscene performance to a minor under ORS
167.075.
(e) Displaying obscene materials to minors under ORS 167.080.
(4) In the case of crimes described in subsection (2)
{ - (L) - } { + (j) + } of this section, the 'victim' is the
child engaged in sexual conduct. In the case of the crime
described in subsection (2) { - (n) - } { + (L) + } of this
section, the 'victim' is the party to the incest other than the
party being prosecuted. In the case of crimes described in
subsection (2) { - (o) and (p) - } { + (m) and (n) + } of this
section, the 'victim' is the child whose acts of prostitution are
promoted or compelled.
(5) Except as provided in subsection (6) of this section or as
otherwise expressly provided by law, prosecutions for other
offenses must be commenced within the following periods of
limitations after their commission:
(a) For any other felony, three years.
(b) For any misdemeanor, two years.
(c) For a violation, six months.
(6) If the period prescribed in subsection (5) of this section
has expired, a prosecution nevertheless may be commenced as
follows:
(a) If the offense has as a material element either fraud or
the breach of a fiduciary obligation, prosecution may be
commenced within one year after discovery of the offense by an
aggrieved party or by a person who has a legal duty to represent
an aggrieved party and who is not a party to the offense, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years; or
(b) If the offense is based upon misconduct in office by a
public officer or employee, prosecution may be commenced at any
time while the defendant is in public office or employment or
within two years thereafter, but in no case shall the period of
limitation otherwise applicable be extended by more than three
years.
SECTION 3. ORS 137.225 is amended to read:
137.225. (1)(a) At any time after the lapse of three years from
the date of pronouncement of judgment, any defendant who has
fully complied with and performed the sentence of the court and
whose conviction is described in subsection (5) of this section
by motion may apply to the court wherein that conviction was
entered for entry of an order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of
any arrest, if no accusatory instrument was filed, or at any time
after an acquittal or a dismissal of the charge, the arrested
person may apply to the court which would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside the record of such arrest. For the purpose of
computing the one-year period, time during which the arrested
person has secreted himself or herself within or without the
state shall not be included.
(2) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting
attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory
instrument filed, and opportunity be given to contest the motion.
The fingerprint card with the notation 'motion for setting aside
conviction' or 'motion for setting aside arrest record' as the
case may be, shall be forwarded to the Department of State Police
Bureau of Criminal Identification. Information resulting from the
fingerprint search along with the fingerprint card shall be
returned to the prosecuting attorney.
(3) Upon hearing the motion, the court may require the filing
of such affidavits and may require the taking of such proofs as
it deems proper. Except as otherwise provided in subsection (11)
of this section, if the court determines that the circumstances
and behavior of the applicant from the date of conviction, or
from the date of arrest as the case may be, to the date of the
hearing on the motion warrant setting aside the conviction, or
the arrest record as the case may be, it shall enter an
appropriate order which shall state the original arrest charge
and the conviction charge, if any and if different from the
original, date of charge, submitting agency and disposition. The
order shall further state that positive identification has been
established by the bureau and further identified as to state
bureau number or submitting agency number. Upon the entry of such
an order, the applicant for purposes of the law shall be deemed
not to have been previously convicted, or arrested as the case
may be, and the court shall issue an order sealing the record of
conviction and other official records in the case, including the
records of arrest whether or not the arrest resulted in a further
criminal proceeding.
(4) The clerk of the court shall forward a certified copy of
the order to such agencies as directed by the court. A certified
copy must be sent to the Department of Corrections when the
person has been in the custody of the Department of Corrections.
Upon entry of such an order, such conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to their
occurrence.
(5) The provisions of (1)(a) of this section apply to a
conviction of:
(a) A Class C felony, except for the following crimes when they
would constitute child abuse as defined in ORS 419B.005:
(A) Criminal mistreatment in the first degree under ORS
163.205;
{ - (B) Rape in the third degree under ORS 163.355; - }
{ - (C) - } { + (B) + } Sodomy in the third degree under
ORS 163.385;
{ - (D) - } { + (C) + } Sexual abuse in the second degree
under ORS 163.425; and
{ - (E) - } { + (D) + } Promoting prostitution under ORS
167.012.
(b) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
(c) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for the following crimes when
they would constitute child abuse as defined in ORS 419B.005:
(A) Criminal mistreatment in the first degree under ORS
163.205;
{ - (B) Rape in the third degree under ORS 163.355; - }
{ - (C) - } { + (B) + } Sodomy in the third degree under
ORS 163.385;
{ - (D) - } { + (C) + } Sexual abuse in the second degree
under ORS 163.425;
{ - (E) - } { + (D) + } Promoting prostitution under ORS
167.012; and
{ - (F) - } { + (E) + } Endangering the welfare of a minor
under ORS 163.575 (1)(a).
(d) A misdemeanor, including a violation of a municipal
ordinance, for which a jail sentence may be imposed, except for
the following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(A) Sexual abuse in the third degree under ORS 163.415; and
(B) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(e) A violation, whether under state law or local ordinance.
(f) An offense committed before January 1, 1972, which if
committed after that date would be:
(A) A Class C felony, except for the following crimes when they
would constitute child abuse as defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205;
{ - (ii) Rape in the third degree under ORS 163.355; - }
{ - (iii) - } { + (ii) + } Sodomy in the third degree under
ORS 163.385;
{ - (iv) - } { + (iii) + } Sexual abuse in the second
degree under ORS 163.425;
{ - (v) - } { + (iv) + } Promoting prostitution under ORS
167.012; and
{ - (vi) - } { + (v) + } Endangering the welfare of a minor
under ORS 163.575 (1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for the following crimes when
they would constitute child abuse as defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205;
{ - (ii) Rape in the third degree under ORS 163.355; - }
{ - (iii) - } { + (ii) + } Sodomy in the third degree under
ORS 163.385;
{ - (iv) - } { + (iii) + } Sexual abuse in the second
degree under ORS 163.425;
{ - (v) - } { + (iv) + } Promoting prostitution under ORS
167.012; and
{ - (vi) - } { + (v) + } Endangering the welfare of a minor
under ORS 163.575 (1)(a).
(C) A misdemeanor, except for the following crimes when they
would constitute child abuse as defined in ORS 419B.005:
(i) Sexual abuse in the third degree under ORS 163.415; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the
provisions of subsection (1) of this section do not apply to:
(a) A person convicted of, or arrested for, a state or
municipal traffic offense;
(b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of
this section, of any other offense, excluding motor vehicle
violations, whether or not the other conviction is for conduct
associated with the same criminal episode that caused the arrest
or conviction that is sought to be set aside. Notwithstanding
subsection (1) of this section, a conviction which has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable;
(c) A person who at the time the motion authorized by
subsection (1) of this section is pending before the court is
under charge of commission of any crime; or
(d) A person convicted of sexual exploitation of a child under
ORS 163.670, dealing in depictions of a child's sexual conduct
under ORS 163.673 or transporting child pornography into Oregon
under ORS 163.677.
(7) The provisions of subsection (1)(b) of this section do not
apply to a person arrested within the three-year period
immediately preceding the filing of the motion for any offense,
excluding motor vehicle violations, and excluding arrests for
conduct associated with the same criminal episode that caused the
arrest that is sought to be set aside.
(8) The provisions of subsection (1) of this section apply to
convictions and arrests which occurred before, as well as those
which occurred after, September 9, 1971. There shall be no time
limit for making such application.
(9) For purposes of any civil action in which truth is an
element of a claim for relief or affirmative defense, the
provisions of subsection (3) of this section providing that the
conviction, arrest or other proceeding be deemed not to have
occurred shall not apply and a party may apply to the court for
an order requiring disclosure of the official records in the case
as may be necessary in the interest of justice.
(10) Upon motion of any prosecutor or defendant in a case
involving records sealed under this section, supported by
affidavit showing good cause, the court with jurisdiction may
order the reopening and disclosure of any records sealed under
this section for the limited purpose of assisting the
investigation of the movant. However, such an order shall have no
other effect on the orders setting aside the conviction or the
arrest record.
(11) Unless the court makes written findings by clear and
convincing evidence that granting the motion would not be in the
best interests of justice, the court shall grant the motion and
enter an order as provided in subsection (3) of this section if
the defendant has been convicted of one of the following crimes
and is otherwise eligible for relief under this section:
(a) Abandonment of a child, ORS 163.535.
(b) Attempted assault in the second degree, ORS 163.175.
(c) Assault in the third degree, ORS 163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the first degree, ORS 163.205.
(f) Attempted escape in the first degree, ORS 162.165.
(g) Incest, ORS 163.525.
(h) Intimidation in the first degree, ORS 166.165.
(i) Attempted kidnapping in the second degree, ORS 163.225.
(j) Criminally negligent homicide, ORS 163.145.
(k) Attempted compelling prostitution, ORS 167.017.
(L) Promoting prostitution, ORS 167.012.
{ - (m) Attempted rape in the second degree, ORS 163.365. - }
{ - (n) Rape in the third degree, ORS 163.355. - }
{ - (o) - } { + (m) + } Attempted robbery in the second
degree, ORS 164.405.
{ - (p) - } { + (n) + } Robbery in the third degree, ORS
164.395.
{ - (q) - } { + (o) + } Sexual abuse in the second degree,
ORS 163.425.
{ - (r) - } { + (p) + } Attempted sodomy in the second
degree, ORS 163.395.
{ - (s) - } { + (q) + } Sodomy in the third degree, ORS
163.385.
{ - (t) - } { + (r) + } Supplying contraband, ORS 162.185.
{ - (u) - } { + (s) + } Unlawful use of a weapon, ORS
166.220.
SECTION 4. Section 51, chapter 790, Oregon Laws 1989, as
amended by section 9, chapter 830, Oregon Laws 1991, and section
10, chapter 692, Oregon Laws 1993, is amended to read:
{ + Sec. 51. + } (1) Notwithstanding the provisions of ORS
161.615, the maximum term of jail incarceration for a Class A
misdemeanor committed on or after November 1, 1989, shall not
exceed six months unless the sentencing judge finds on the record
substantial and compelling reasons to impose a longer term.
(2) The provisions of subsection (1) of this section do not
apply to sentences imposed for:
(a) Violations of ORS 163.415, 163.435, 163.465, 163.575 or
813.010;
(b) An attempt to commit a crime described in ORS
{ - 163.355, - } 163.385, 163.425 or 163.525; or
(c) Any other sex crime that can be treated as a misdemeanor on
sentencing.
(3) This section does not expand the scope of review in any
appeal from a judgment of conviction as provided in ORS 138.040
or 138.050.
(4) ORS 138.222 does not apply in any appeal of a judgment of
conviction that is subject to this section.
(5) This section is repealed November 1, 1995.
SECTION 5. ORS 163.345 is amended to read:
163.345. (1) In any prosecution under ORS { - 163.355,
163.365, - } 163.385, 163.395, 163.415, 163.425 or 163.427 in
which the victim's lack of consent was due solely to incapacity
to consent by reason of being less than a specified age, it is a
defense that the actor was less than three years older than the
victim at the time of the alleged offense.
(2) In any prosecution under ORS 163.408, when the object used
to commit the unlawful sexual penetration was the hand or any
part thereof of the actor and in which the victim's lack of
consent was due solely to incapacity to consent by reason of
being less than a specified age, it is a defense that the actor
was less than three years older than the victim at the time of
the alleged offense.
SECTION 6. ORS 181.662 is amended to read:
181.662. (1) The board may deny or revoke the certification of
any police officer, corrections officer, parole and probation
officer, telecommunicator or emergency medical dispatcher after
written notice and hearing, based upon a finding that:
(a) The officer, telecommunicator or emergency medical
dispatcher falsified any information submitted on the application
for certification or on any documents submitted to the board.
(b) The officer, telecommunicator or emergency medical
dispatcher has been convicted of a crime in this state or any
other jurisdiction.
(2) The board may deny or revoke the accreditation of any fire
service professional after written notice and hearing, based upon
a finding that:
(a) The fire service professional falsified any information
submitted on the application for accreditation or on any
documents submitted to the board; or
(b) The fire service professional has been discharged for cause
from employment in the fire service.
(3) The board shall deny or revoke the certification of any
police officer, corrections officer, parole and probation
officer, telecommunicator or emergency medical dispatcher after
written notice and hearing, based upon a finding that:
(a) The officer, telecommunicator or emergency medical
dispatcher has been discharged for cause from employment as a
police officer, corrections officer, parole and probation
officer, telecommunicator or emergency medical dispatcher.
(b) The officer, telecommunicator or emergency medical
dispatcher has been convicted while employed by a law enforcement
unit or public or private safety agency in this state or any
other jurisdiction of a crime designated under the law where the
conviction occurred as being punishable as a felony or as a crime
for which a maximum term of imprisonment of more than one year
may be imposed.
(c) The officer, telecommunicator or emergency medical
dispatcher has been convicted of violating any law of this state
or any other jurisdiction involving the unlawful use, possession,
delivery or manufacture of a controlled substance, narcotic or
dangerous drug.
(d) The officer, telecommunicator or emergency medical
dispatcher has been convicted in this state of violating ORS
162.065, 162.075, 162.085, 163.355 { + (1993 Edition) + },
163.365 { + (1993 Edition) + }, 163.375, 163.385, 163.395,
163.405, 163.408, 163.411, 163.415, 163.425, 163.427, 163.435,
163.445, 163.465, 163.515, 163.525, 163.575, 163.670, 163.675
(1985 Replacement Part), 163.680, 167.007, 167.012, 167.017,
167.065, 167.070, 167.075 or 167.080 or has been convicted of
violating the statutory counterpart of any of those offenses in
any other jurisdiction.
SECTION 7. ORS 342.143 is amended to read:
342.143. (1) No teaching or administrative license shall be
issued to any person until the person has attained the age of 18
years and has furnished satisfactory evidence of proper
educational training.
(2) The Teacher Standards and Practices Commission may also
require an applicant for a teaching or administrative license to
furnish evidence satisfactory to the commission of good moral
character, mental and physical health, and such other evidence as
it may deem necessary to establish the applicant's fitness to
serve as a teacher.
(3) Without limiting the powers of the Teacher Standards and
Practices Commission under subsection (2) of this section and
notwithstanding ORS 670.280:
(a) No teaching or administrative license shall be issued to
any person who after August 20, 1957, has been convicted of a
crime listed in ORS 163.355 { + (1993 Edition) + }, 163.365 { +
(1993 Edition) + }, 163.375, 163.385, 163.395, 163.405, 163.415,
163.425, 163.427, 163.435, 163.445, 163.455 (1981 Replacement
Part), 163.465, 163.515, 163.525, 163.575, 167.007, 167.012,
167.017, 167.065, 167.070, 167.075 or 167.080 or after July 8,
1987, has been convicted of a crime listed in ORS 163.408,
163.411, 163.670, 163.675 (1985 Replacement Part), 163.680,
167.062, 167.087 or 167.090.
(b) The Teacher Standards and Practices Commission may refuse
to issue a license to any person who has been convicted of a
crime involving the illegal use, sale or possession of controlled
substances.
(4) In denying the issuance of a license under this section,
the commission shall follow the procedure set forth in ORS
342.176 and 342.177.
SECTION 8. ORS 342.175 is amended to read:
342.175. (1) The Teacher Standards and Practices Commission may
suspend or revoke the license of a teacher or administrator,
discipline a teacher or administrator or suspend or revoke the
right of any person to apply for a license if the person has held
a license at any time within five years prior to issuance of the
notice of charges under ORS 342.176 based on the following:
(a) Conviction of a crime not listed in subsection (2) of this
section;
(b) Gross neglect of duty;
(c) Any gross unfitness;
(d) Conviction of a crime for violating any law of this or any
state or of the United States involving the illegal use, sale or
possession of controlled substances;
(e) Any false statement knowingly made in an application for
issuance, renewal or reinstatement of a license; or
(f) Failure to comply with any condition of reinstatement under
subsection (3) of this section or any condition of probation
under ORS 342.177 (3)(b).
(2) Notwithstanding ORS 670.280, the commission shall revoke
any license and shall revoke the right of any person to apply for
a license if the person has held a license at any time within
five years prior to issuance of the notice of charges under ORS
342.176 when the holder or person after August 20, 1957, has been
convicted of a violation of ORS 163.355 { + (1993 Edition) + },
163.365 { + (1993 Edition) + }, 163.375, 163.385, 163.395,
163.405, 163.415, 163.425, 163.427, 163.435, 163.445, 163.455
(1981 Replacement Part), 163.465, 163.515, 163.525, 163.575,
167.007, 167.012, 167.017, 167.065, 167.070, 167.075 or 167.080
or after July 8, 1987, has been convicted of a crime listed in
ORS 163.408, 163.411, 163.670, 163.675 (1985 Replacement Part),
163.680, 167.062, 167.087 or 167.090.
(3) Subject to subsection (4) of this section, any person whose
license has been suspended or revoked or whose privilege to apply
for a license has been revoked may apply to the commission for
reinstatement of the license after one year from the date of the
suspension or revocation. However, a person whose license has
been revoked under subsection (2) of this section shall not apply
for reinstatement until after expiration of the sentence or
parole or probationary period imposed upon conviction, whichever
is the shorter. The commission may require an applicant for
reinstatement to furnish evidence satisfactory to the commission
of good moral character, mental and physical health and such
other evidence as the commission may consider necessary to
establish the applicant's fitness. The commission may impose a
probationary period and such conditions as it considers necessary
upon approving an application for reinstatement.
(4) The commission shall reconsider immediately a license
suspension or revocation or the situation of a person whose
privilege to apply for a license has been revoked, upon
application therefor, when the license suspension or revocation
or the privilege revocation is based on a criminal conviction
that is reversed on appeal.
(5) Violation of rules adopted by the commission relating to
competent and ethical performance of professional duties shall be
admissible as evidence of gross neglect of duty or gross
unfitness.
(6) A copy of the record of conviction, certified to by the
clerk of the court entering the conviction, shall be conclusive
evidence of a conviction described in this section.
SECTION 9. ORS 419A.250 is amended to read:
419A.250. (1) A child may be photographed or fingerprinted by a
law enforcement agency:
(a) Pursuant to a search warrant;
(b) According to laws concerning adults if the child has been
transferred to criminal court for prosecution;
(c) If a child is taken into custody for the commission of an
act which if committed by an adult would constitute a felony or a
Class A misdemeanor and the child's photograph or fingerprints
are needed to complete the investigation of a crime;
(d) Upon consent of both the child and the child's parent after
advice that they are not required to give such consent;
(e) Upon request or consent of the child's parent alone if the
child is less than 10 years of age, and if the law enforcement
agency delivers the original photographs or fingerprints to the
parent and does not make or retain any copies thereof;
(f) By order of the juvenile court; or
(g) If a child is taken into custody and a law enforcement
agency has probable cause to believe that the child is involved
in a conspiracy or a conspiratorial relationship with others to
commit acts that if committed by an adult would constitute a
felony or a Class A misdemeanor.
(2) A child may be photographed or fingerprinted after the
child has been found to be within the jurisdiction of the
juvenile court for an act which if committed by an adult would
constitute a felony or a Class A misdemeanor.
(3) Fingerprint and photograph files or records of children
shall be kept separate from those of adults, and fingerprints and
photographs known to be those of a child shall be maintained on a
local basis only and not sent to a central state or federal
depository.
(4) Fingerprint and photograph files or records of a child
shall be kept separate from the records and files of adults and
shall be open to inspection only by, or the contents disclosed
only to, the following:
(a) Public agencies for use in investigation or prosecution of
crimes and of conduct by a child which if committed by an adult
would be an offense, provided that a law enforcement agency may
provide information to another agency only when the information
is pertinent to a specific investigation by that agency;
(b) The juvenile department and the juvenile court having the
child before it in any proceeding;
(c) Caseworkers and counselors taking action or otherwise
responsible for planning and care of the child;
(d) The parties to the proceeding and their counsel;
(e) A criminal court to which jurisdiction of the child has
been transferred;
(f) A criminal court for the purpose of a presentence report or
other dispositional proceeding following conviction of a criminal
offense; and
(g) The victim or a witness of an act or behavior described
under ORS 419C.005 (1) or the victim's parent, guardian, personal
representative or subrogee, when necessary to identify the child
committing the act or behavior and identifying the apparent
extent of the child's involvement in the act or behavior.
(5)(a) Notwithstanding subsections (3) and (4) of this section,
fingerprint and photograph files or records of children found to
be within the jurisdiction of the juvenile court for an act which
if committed by an adult would constitute one of the crimes
listed in paragraph (b) of this subsection need not be kept
separate from those of adults but may be sent to a central state
depository in the same manner as fingerprint and photograph files
or records of adults. The fingerprint and photograph files or
records of a child sent to a central depository under this
subsection shall be open to inspection in the same manner and
under the same circumstances as fingerprint and photograph files
or records of adults.
(b) Paragraph (a) of this subsection applies to the following
crimes:
(A) Tampering with a witness under ORS 162.285;
(B) Hindering prosecution under ORS 162.325;
(C) Aggravated murder under ORS 163.095;
(D) Murder under ORS 163.115;
(E) Manslaughter in the first degree under ORS 163.118;
(F) Manslaughter in the second degree under ORS 163.125;
(G) Criminally negligent homicide under ORS 163.145;
(H) Assault in the second degree under ORS 163.175;
(I) Assault in the first degree under ORS 163.185;
(J) Kidnapping in the second degree under ORS 163.225;
(K) Kidnapping in the first degree under ORS 163.235;
(L) Coercion under ORS 163.275;
(M) Rape in the third degree under ORS 163.355 { + (1993
Edition) + };
(N) Rape in the second degree under ORS 163.365 { + (1993
Edition) + };
(O) Rape in the first degree under ORS 163.375;
(P) Sodomy in the third degree under ORS 163.385;
(Q) Sodomy in the second degree under ORS 163.395;
(R) Sodomy in the first degree under ORS 163.405;
(S) Unlawful sexual penetration in the second degree under ORS
163.408;
(T) Unlawful sexual penetration in the first degree under ORS
163.411;
(U) Sexual abuse in the second degree under ORS 163.425;
(V) Sexual abuse in the first degree under ORS 163.427;
(W) Burglary in the first degree under ORS 164.225;
(X) Arson in the second degree under ORS 164.315;
(Y) Arson in the first degree under ORS 164.325;
(Z) Criminal mischief in the first degree under ORS 164.365
{ + (1993 Edition) + };
(AA) Robbery in the third degree under ORS 164.395;
(BB) Robbery in the second degree under ORS 164.405;
(CC) Robbery in the first degree under ORS 164.415;
(DD) Intimidation in the second degree under ORS 166.155;
(EE) Intimidation in the first degree under ORS 166.165;
(FF) Unlawful possession of machine guns, certain
short-barreled firearms and firearms silencers under ORS 166.272;
(GG) Use of a firearm during the commission of a felony under
ORS 166.429;
(HH) Promoting prostitution under ORS 167.012; and
(II) Compelling prostitution under ORS 167.017.
(c) No later than five years and 30 days after fingerprint and
photograph files or records are sent to the central state
registry under paragraph (a) of this subsection, the Department
of State Police shall delete the files and records from the
registry and destroy the files and records.
(6) Fingerprint and photograph files and records of a child
shall be destroyed when the juvenile court orders expunction of a
child's record pursuant to ORS 419A.260 and 419A.262.
(7)(a) Fingerprint and photograph files of a child who is
adjudicated and found not to be within the jurisdiction of the
juvenile court for an act, which if committed by an adult would
constitute a felony or a misdemeanor, shall be destroyed by the
officer charged with the maintenance of those files within 60
days from the date of adjudication.
(b) Fingerprint and photograph files of a child who is not
adjudicated and found to be within the jurisdiction of the
juvenile court for an act, which if committed by an adult would
constitute a felony or a misdemeanor, within two years from the
date on which the fingerprints or photograph were obtained, shall
be destroyed by the officer charged with the maintenance of those
files.
(8) The parent or guardian of a missing child may submit a
fingerprint card and photograph of the child to a law enforcement
agency at the time a missing person report is made. The law
enforcement agency may submit the fingerprint file to the
Department of State Police Bureau of Criminal Identification. The
information shall be entered into the Law Enforcement Data System
and the Western Identification Network Automated Fingerprint
Identification System.
(9) When fingerprint files or records are submitted under
subsection (8) of this section, the Department of State Police
shall enter in a special index in the computerized criminal
history files the name of the child and the name of the county or
agency that submitted the fingerprint file or record.
(10) Fingerprints and other information entered in any data
system pursuant to subsection (8) of this section shall be
deleted when the child is located.
SECTION 10. ORS 419A.260 is amended to read:
419A.260. (1) As used in this section and ORS 419A.262:
(a) 'Contact' means any instance in which a person's act or
behavior, or alleged act or behavior, which could result in a
juvenile court's assumption of jurisdiction under ORS 419B.100
(1)(a) to (c) and (f) or 419C.005 comes to the attention of an
agency specified in paragraph (d) of this subsection.
(b) 'Expunction' means:
(A) The removal and destruction of a judgment or order related
to a contact;
(B) The removal and destruction of all records and all
references; and
(C) Where a record is kept by the Children's Services Division,
either the sealing of such record by the division, or in a
multiperson file, the affixing to the front of the file, by the
division, a stamp or statement identifying the name of the
individual, the date of expunction and instruction that no
further reference shall be made to the material that is subject
to the expunction order except upon an order of a court of
competent jurisdiction.
(c) 'Person' includes a person under 18 years of age.
(d) 'Record' includes a fingerprint or photograph file, report,
exhibit or other material which contains information relating to
a person's contact with any law enforcement agency or juvenile
court or juvenile department and is kept manually, through the
use of electronic data processing equipment, or by any other
means by a law enforcement or public investigative agency, a
juvenile court or juvenile department or an agency of the State
of Oregon. 'Record' does not include:
(A) A transcript of a student's academic record at MacLaren
School for Boys or Hillcrest School of Oregon;
(B) Material on file with a public agency which is necessary
for obtaining federal financial participation regarding financial
assistance or services on behalf of a person who has had a
contact;
(C) Records kept or disseminated by the Department of
Transportation, State Marine Board and State Fish and Wildlife
Commission pursuant to juvenile or adult order or recommendation;
(D) Police and court records related to an order of waiver
where the matter is still pending in the adult court or on appeal
therefrom, or to any disposition as an adult pursuant to such
order;
(E) Records related to a support obligation;
(F) Medical records;
(G) Records of a proposed or adjudicated termination of
parent-child relationship and adoptions;
(H) Any law enforcement record of a person who currently does
not qualify for expunction or of current investigations or cases
waived to the adult court;
(I) Records and case reports of the Oregon Supreme Court and
the Oregon Court of Appeals;
(J) Any records in cases under ORS 419C.005 in which a juvenile
court found a person to be within the jurisdiction of the court
based upon the person's commission of an act which would
constitute child abuse as defined in ORS 419B.005 and if done by
an adult would constitute one of the following offenses:
(i) Criminal mistreatment in the first degree under ORS
163.205;
(ii) Rape in the third degree under ORS 163.355 { + (1993
Edition) + };
(iii) Rape in the second degree under ORS 163.365 { + (1993
Edition) + };
(iv) Rape in the first degree under ORS 163.375;
(v) Sodomy in the third degree under ORS 163.385;
(vi) Sodomy in the second degree under ORS 163.395;
(vii) Sodomy in the first degree under ORS 163.405;
(viii) Unlawful sexual penetration in the second degree under
ORS 163.408;
(ix) Unlawful sexual penetration in the first degree under ORS
163.411;
(x) Sexual abuse in the third degree under ORS 163.415;
(xi) Sexual abuse in the second degree under ORS 163.425;
(xii) Sexual abuse in the first degree under ORS 163.427;
(xiii) Promoting prostitution under ORS 167.012; and
(xiv) Compelling prostitution under ORS 167.017;
(K) Blood samples, autoradiographs and other physical evidence
and identification information obtained, stored or maintained by
the Department of State Police under authority of ORS 137.076,
181.085 or 419C.473; or
(L) Any records in cases under ORS 419C.005 in which a juvenile
court found a person to be within the jurisdiction of the court
based upon the person's commission of an act which if done by an
adult would constitute one of the following offenses:
(i) Aggravated murder under ORS 163.095;
(ii) Murder under ORS 163.115;
(iii) Manslaughter in the first degree under ORS 163.118;
(iv) Manslaughter in the second degree under ORS 163.125; or
(v) Criminally negligent homicide under ORS 163.145.
(e) 'Termination' means:
(A) For a person who is the subject of a record kept by a
juvenile court or juvenile department, the final disposition of a
case by informal means, by a decision not to place the person on
probation or make the person a ward of the court after the person
has been found to be within the court's jurisdiction, or by a
discontinuance of probation or of the court's wardship under ORS
419A.290.
(B) For a person who is the subject of a record kept by a law
enforcement or public investigative agency, a juvenile court or
juvenile department or an agency of the State of Oregon, the
final disposition of the person's most recent contact with a law
enforcement agency.
(2) The juvenile court or juvenile department shall make
reasonable effort to provide written notice to a child who is
within the court's jurisdiction under ORS 419B.100 (1)(a) to (c)
and (f) or 419C.005, and to the child's parent, of the procedures
for expunction of a record, the right to counsel under this
chapter, and the legal effect of an expunction order, at the
following times:
(a) At any dispositional hearing or at any informal
disposition;
(b) At the time of termination;
(c) Upon notice to the subject of an expunction pending
pursuant to application of a juvenile department or motion on a
juvenile court; and
(d) At the time of notice of execution of an expunction order.
SECTION 11. ORS 421.455 is amended to read:
421.455. (1) The Director of the Department of Corrections
shall establish at places in state forests recommended by the
State Board of Forestry one or more forest work camps at which
state inmates and local inmates may be employed. Only such state
inmates as are determined by the Department of Corrections to
require minimum security may be placed at a forest work camp, but
the Department of Corrections shall not place an inmate at a
forest work camp if the department is aware that the inmate has
ever been convicted, of:
(a) Rape in the first degree, as described in ORS 163.375.
(b) Rape in the second degree, as described in ORS 163.365
{ + (1993 Edition) + }.
(c) Rape in the third degree, as described in ORS 163.355 { +
(1993 Edition) + }.
(d) Sodomy in the first degree, as described in ORS 163.405.
(e) Sodomy in the second degree, as described in ORS 163.395.
(f) Sodomy in the third degree, as described in ORS 163.385.
(g) Unlawful sexual penetration in the first degree, as
described in ORS 163.411.
(h) Unlawful sexual penetration in the second degree, as
described in ORS 163.408.
(i) Sexual abuse in the first degree, as described in ORS
163.427.
(j) Sexual abuse in the second degree, as described in ORS
163.425.
(k) Any crime in any other jurisdiction that would constitute a
crime described in this subsection if presently committed in this
state.
(L) Any attempt to commit a crime described in this subsection.
(2) The State Board of Forestry may make contracts with any
other state agency in order to effectuate the purposes of ORS
421.455, 421.465, 421.470 and 421.475.
SECTION 12. ORS 421.502 is amended to read:
421.502. As used in ORS 421.502 to 421.512:
(1) 'Cognitive restructuring' means any rehabilitation process
that redirects the thinking of an offender into more socially
acceptable directions and that is generally accepted by
rehabilitation professionals.
(2) 'Department' means the Department of Corrections.
(3)(a) 'Offender' includes a person who:
(A) Is in the custody of the department; and
(B) Is at least 18 but no more than 40 years of age at the time
of entry into the program.
(b) 'Offender' includes a person who is under 18 years of age
and has been convicted of a crime upon remand from the juvenile
court.
(c) 'Offender' does not include a person convicted of a crime
described in ORS 163.095, 163.115, 163.118, 163.235, 163.355
{ + (1993 Edition) + }, 163.365 { + (1993 Edition) + },
163.375, 163.385, 163.395, 163.405, 163.408, 163.411, 163.415,
163.425, 163.427, 163.435, 163.525, 164.325 or 164.415.
(4) 'Program' means the special alternative incarceration
program established under ORS 421.504.
SECTION 13. { + ORS 163.355 and 163.365 are repealed. + }
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