68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
Enrolled
House Bill 3345
Sponsored by Representatives LOKAN, SOWA, Senator KENNEMER;
Representatives JOHNSTON, MANNIX, MARKHAM, REPINE, SNODGRASS,
STARR, WELSH (at the request of North Clackamas School
District)
CHAPTER ................
AN ACT
Relating to sex offender registration; creating new provisions;
amending ORS 137.225, 181.517 and 419A.260 and sections 4, 5, 6
and 7, chapter 389, Oregon Laws 1991; and repealing section 8,
chapter 389, Oregon Laws 1991, and section 9, chapter ___,
Oregon Laws 1995 (Enrolled House Bill 2692).
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. ORS 181.517 is amended
to read:
181.517. As used in ORS 181.518 and 181.519:
(1) 'Correctional facility' means any place used for the
confinement of persons charged with or convicted of a crime or
otherwise confined under a court order. 'Correctional facility '
does not include a juvenile facility, and applies to a state
hospital only as to persons detained therein charged with or
convicted of a crime, or detained therein after being found
guilty except for insanity under ORS 161.290 to 161.370.
(2) 'Sex crime' means:
(a) Rape in any degree;
(b) Sodomy in any degree;
(c) Unlawful sexual penetration in any degree;
(d) Sexual abuse in any degree;
(e) Incest with a child victim;
(f) Using a child in a display of sexually explicit conduct;
(g) Dealing in depictions of a child's sexual conduct;
(h) Transporting child pornography into the state;
(i) Paying for viewing a child's sexually explicit conduct;
(j) Compelling prostitution;
(k) Promoting prostitution; { - or - }
(L) Any attempt to commit any of the crimes set forth in
paragraphs (a) to (k) of this subsection { + ; or
(m) Burglary, when committed with intent to commit any of the
offenses listed in paragraphs (a) to (f) of this subsection + }.
**************************** SECTION 2. { + (1) When a person
listed in subsection (2) of this section moves into this state
and is not otherwise required by ORS 181.518 or 181.519 to
register, the person shall provide, in person, the address of the
person to the Department of State Police, a city police
department or a county sheriff's office:
(a) No later than 30 days after moving into this state;
(b) Within 30 days of a change of residence; and
(c) Once each year regardless of whether the person changed
residence.
(2) Subsection (1) of this section applies to:
(a) A person convicted in another jurisdiction of a crime if
the elements of the crime would constitute a sex crime as defined
in ORS 181.517; and
(b) A person required to register in another state for having
committed a sex offense in that state regardless of whether the
crime would constitute a sex crime in this state. + }
**************************** SECTION 3. { + (1) The Department
of State Police shall provide forms on which a person required to
register, or be registered, under ORS 181.518 or 181.519 or
section 2 of this Act must register. City police departments and
county sheriffs' offices shall forward the original registration
form to the Department of State Police no later than five working
days after registration.
(2) Entities required to register offenders under ORS 181.518
and 181.519 shall use forms provided by the Department of State
Police and shall enter the offender information into the Law
Enforcement Data System. The original registration forms must be
forwarded to the Department of State Police no later than five
working days after registration. + }
**************************** SECTION 4. { + The Department of
State Police, a city police department or a sheriff's office may
photograph and fingerprint a person as part of the registration
required under section 2 of this Act. + }
**************************** SECTION 5. Section 4, chapter 389,
Oregon Laws 1991, is amended to read:
{ + Sec. 4. + } (1) A person who { + has knowledge of the
registration requirement and who + } fails { + to make the
initial registration or + } to register following a change of
address as required by ORS 181.518 and 181.519 { + or section 2
of this 1995 Act + } commits a:
(a) Class C felony, if the crime for which the person is
required to register is a felony; or
(b) Class A misdemeanor, if the crime for which the person is
required to register is a misdemeanor.
(2) A person who { + has knowledge of the registration
requirement and who + } fails to file the annual report required
by ORS 181.518 and 181.519 { + or section 2 of this 1995 Act
+ }commits a violation.
**************************** SECTION 6. Section 5, chapter 389,
Oregon Laws 1991, as amended by section 4, chapter 147, Oregon
Laws 1993, is amended to read:
{ + Sec. 5. + } (1) No sooner than 10 years after termination
of active supervision on probation, conditional release, parole
or post-prison supervision, a person required to register as
required by ORS 181.518 and 181.519 { + or section 2 of this
1995 Act + } may file a petition in the circuit court of the
county in which the person resides for an order relieving the
person of the duty to register. The district attorney of the
county shall be named and served as the respondent in the
petition.
(2) The court shall hold a hearing on the petition. In
determining whether to grant the relief requested, the court
shall consider:
(a) The nature of the offense that required registration;
(b) The age and number of victims;
(c) The degree of violence involved in the offense;
(d) Other criminal and relevant noncriminal behavior of the
petitioner both before and after the conviction that required
registration;
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(e) The period of time during which the petitioner has not
reoffended; { - and - }
{ + (f) Whether the petitioner has successfully completed a
court-approved sex offender treatment program; and + }
{ - (f) - } { + (g) + } Any other relevant factors.
(3) If the court is satisfied by clear and convincing evidence
that the petitioner is rehabilitated and that the petitioner does
not pose a threat to the safety of the public, the court shall
enter an order relieving the petitioner of the duty to register.
**************************** SECTION 7. Section 6, chapter 389,
Oregon Laws 1991, is amended to read:
{ + Sec. 6. + } (1)(a) When information about a person is
first entered into the Law Enforcement Data System under ORS
181.518 or 181.519 { + or section 2 of this 1995 Act + }, the
person will be assigned a registry identification number.
(b) A victim shall be issued a victim identification number and
shall be given the registry identification number of the person
who committed the crime against the victim:
(A) At any time, upon request by the victim; and
(B) Upon verification of the identification of the victim.
(2) The Oregon State Police shall establish a toll-free
telephone number to provide victims with updates on the prison
status, release information, parole status and the county of
residence of the person who committed the crime against the
victim. The telephone line shall be operational within the state
during normal working hours.
(3) Access of the victim to the telephone line shall be revoked
if the victim makes public, or otherwise misuses, information
received.
(4) When a victim receives notification under ORS 144.120 (7)
of upcoming parole release hearings, or at any other time that
the victim is notified concerning the offender, the victim shall
be provided a notice of rights under this section and information
about the toll-free telephone number.
**************************** SECTION 8. Section 7, chapter 389,
Oregon Laws 1991, is amended to read:
{ + Sec. 7. + } The purpose of ORS 181.517, 181.518 and
181.519 { + , + }
{ - and - } sections 4 to 6 { + , chapter 389, Oregon Laws
1991, and sections 2 to 4 + } of this { + 1995 + } Act is to
assist law enforcement agencies in preventing future sex
offenses.
**************************** SECTION 9. 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.
Enrolled House Bill 3345 Page 3
(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 subsection (1)(a) of this section apply
to a conviction of:
(a) A Class C felony, except for { + criminal mistreatment in
the first degree under ORS 163.205 when it would constitute child
abuse, as defined in ORS 419B.005, or any sex crime. + }
{ - 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) Sodomy in the third degree under ORS 163.385; - }
{ - (D) Sexual abuse in the second degree under ORS 163.425;
and - }
{ - (E) 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 { + :
(A) Any sex crime; and
(B) + } The following crimes when they would constitute child
abuse as defined in ORS 419B.005:
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{ - (A) - } { + (i) + } Criminal mistreatment in the first
degree under ORS 163.205; { + and + }
{ - (B) Rape in the third degree under ORS 163.355; - }
{ - (C) Sodomy in the third degree under ORS 163.385; - }
{ - (D) Sexual abuse in the second degree under ORS
163.425; - }
{ - (E) Promoting prostitution under ORS 167.012; and - }
{ - (F) - } { + (ii) + } 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) { + when it would constitute child abuse, as
defined in ORS 419B.005, or any sex crime + }.
(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 { + + } { + any sex crime
or 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; { + and + }
{ - (ii) Rape in the third degree under ORS 163.355; - }
{ - (iii) Sodomy in the third degree under ORS 163.385; - }
{ - (iv) Sexual abuse in the second degree under ORS
163.425; - }
{ - (v) Promoting prostitution under ORS 167.012; and - }
{ - (vi) - } { + (ii) + } 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 { + any sex crime or
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; { + and + }
{ - (ii) Rape in the third degree under ORS 163.355; - }
{ - (iii) Sodomy in the third degree under ORS 163.385; - }
{ - (iv) Sexual abuse in the second degree under ORS
163.425; - }
{ - (v) Promoting prostitution under ORS 167.012; and - }
{ - (vi) - } { + (ii) + } 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) { + when it would constitute child abuse, as
defined in ORS 419B.005, or any sex crime + }.
(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;
Enrolled House Bill 3345 Page 5
(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; { + or + }
(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 { + , if the victim was at least 18
years of age + }.
(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. - }
Enrolled House Bill 3345 Page 6
{ - (m) Attempted rape in the second degree, ORS 163.365. - }
{ - (n) Rape in the third degree, ORS 163.355. - }
{ - (o) - } { + (k) + } Attempted robbery in the second
degree, ORS 164.405.
{ - (p) - } { + (L) + } Robbery in the third degree, ORS
164.395.
{ - (q) Sexual abuse in the second degree, ORS 163.425. - }
{ - (r) Attempted sodomy in the second degree, ORS
163.395. - }
{ - (s) Sodomy in the third degree, ORS 163.385. - }
{ - (t) - } { + (m) + } Supplying contraband, ORS 162.185.
{ - (u) - } { + (n) + } Unlawful use of a weapon, ORS
166.220.
{ + (12) As used in this section, 'sex crime' has the meaning
given that term in ORS 181.517. + }
**************************** SECTION 9a. { + If House Bill
2692 becomes law, section 9, chapter ___, Oregon Laws 1995
(Enrolled House Bill 2692) (amending ORS 137.225), is
repealed. + }
**************************** 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;
Enrolled House Bill 3345 Page 7
(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; - }
{ - (iii) Rape in the second degree under ORS 163.365; - }
{ - (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 { + ; or
(vi) A sex crime + }.
{ + (e) 'Sex crime' has the meaning given that term in ORS
181.517. + }
{ - (e) - } { + (f) + } '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
Enrolled House Bill 3345 Page 8
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. { + (1)
Notwithstanding any other provision of law, the Department of
State Police, the chief of police of a city police department or
a county sheriff may notify anyone the Department of State
Police, chief of police or sheriff determines is appropriate that
a person is a predatory sex offender if the Department of State
Police, chief of police or sheriff, in conjunction with the
Department of Corrections, determines that the person is a
predatory sex offender as provided in ORS 181.507 and the person
is not under active supervision by the Department of Corrections
or a community corrections agency.
(2) Notification under subsection (1) of this section may
include distribution of any information listed in ORS 181.508
(3).
(3) The Department of State Police, a chief of police or a
sheriff may not release lists of registered sex offenders or
addresses of registered sex offenders to the public. + }
**************************** SECTION 12. { + Section 8,
chapter 389, Oregon Laws 1991, is repealed. + }
----------
Enrolled House Bill 3345 Page 9
Passed by House April 18, 1995
Repassed by House May 29, 1995
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 25, 1995
...........................................................
President of Senate
Enrolled House Bill 3345 Page 10
Received by Governor:
......M.,............., 1995
Approved:
......M.,............., 1995
...........................................................
Governor
Filed by Office of Secretary of State:
......M.,............., 1995
...........................................................
Secretary of State
Enrolled House Bill 3345 Page 11