State v. Rodriguez/Buck

DE MUNIZ, C. J.,

concurring in part and dissenting in part:

In both cases before the court, defendants were convicted of first-degree sexual abuse based on sexual contact *81 with victims less than 14 years of age, in violation of ORS 163.427. Because I agree that there was sufficient evidence in the record to support defendants’ convictions for first-degree sexual abuse, I concur with the majority’s affirmance of those convictions.

However, I must dissent from the majority’s affirmance of the sentences imposed by the trial court in each case. In my view, the trial court’s failure to impose the sentences mandated by Measure 11 was error. I would summarize my position this way: The legislature (and, here, the people exercising their legislative power through the initiative process) reasonably could conclude that children need particular, special, and vigorous protection from those who would prey upon them. The legislature further reasonably could conclude that, of all the harms (short of murder) done to children, sexual harm has by far the greatest potential for creating long-lasting psychological damage to the victims. The legislature further reasonably could conclude that, in light of the foregoing, it wished to create a “zero tolerance” policy toward offenders who sexually molested members of this protected group. In my view, that is precisely what the legislature has chosen to do here, and it is no office of ours to second-guess that choice.

In affirming the trial courts’ sentences, the majority interprets Article I, section 16, in a way that allows the judiciary to encroach on the authority of the legislature to determine the appropriate penalties for crimes. Although the contours of the test for proportionality had not been precisely drawn previously, this court’s cases have demonstrated three overarching principles: (1) the legislature has broad authority to define crimes and to establish penalties based on its considered judgment regarding the seriousness of those crimes; (2) only a sentence that is grossly disproportionate compared to the offense is forbidden by Article I, section 16; and (3) a sentence is so disproportionately severe so as to violate Article I, section 16, in only rare and extreme circumstances.

In 1929, this court stated that the “power to declare what punishment may be assessed against those convicted of crime is not a judicial, but a legislative, power[.]” State v. *82 Smith, 128 Or 515, 524 , 273 P 323 (1929). In Jensen v. Gladden, 231 Or 141, 146 , 372 P2d 183 (1962), the court reiterated that “[i]t is the province of the legislature to establish the penalties for the violation of various criminal statutes * * Recently, in an opinion rejecting an as-applied challenge to a Measure 11 sentence, this court stated that “the legislature (and the people, acting through the initiative process) has broad authority to determine which crimes [are] ‘greater’ and therefore deserving of greater penalties, as long as there is some reasonable basis for that decision[.]" State v. Wheeler, 343 Or 652, 672 , 175 P3d 438 (2007) (emphasis added).

Wheeler also emphasized that “the legislature’s authority to set criminal penalties means that the court’s role is a limited one,” id., and that the court’s test for evaluating Article I, section 16, “attempt[s] to articulate a standard that would find a penalty to be disproportionately severe for a particular offense only in rare circumstances,” id. at 670 (emphasis added). The limited nature of the court’s role is demonstrated by how infrequently the court has sustained challenges to sentences under Article I, section 16. On two occasions, this court has held that a sentence violated Article I, section 16, when the lesser-included offense was punished more severely than the greater offense. State v. Shumway, 291 Or 153, 164 , 630 P2d 796 (1981) (lower minimum sentence for aggravated homicide than for unaggravated homicide violated Article I, section 16); Cannon v. Gladden, 203 Or 629, 633 , 281 P2d 233 (1955) (maximum of life imprisonment for assault with intent to commit rape violated Article I, section 16, when rape carried a maximum sentence of 20 years). This is not one of those cases.

This court has only once invalidated a sentence as “excessive” in an as-applied challenge. In State v. Ross, 55 Or 450, 474 , 104 P 596 (1909), on reh’g, 106 P 1022 (1910), a defendant convicted of larceny was fined more than $500,000 and sentenced to five years and additional time until the fine was paid, not exceeding 288,426 days (more than 790 years). The court concluded that the 288,426-day sentence was “cruel and unusual within the prohibition of the constitution.” Id. In doing so, the court noted that

*83 “[t]here can be no question that a sentence may be excessive, even though within the maximum of the statute, but if excessive, it is within the power of the appellate court to enforce this provision of the Bill of Rights, and avoid the judgment so far as it is excessive.”

Id. at 474. On a motion for rehearing, the court also eliminated the fine, concluding that

“[t]he fine and the imprisonment for nonpayment thereof, adjudicated by the trial court, were within the terms of the statute and in compliance with its direct command, but we are of the opinion that, the fine being so great, it is apparently beyond the power of the defendant to pay it at this time or even during a lifetime of effort, and is such a one as is inhibited by the constitution.”

Id. at 480.

Sentencing an adult who was convicted of sexual contact with a child under the age of 14 — even if that contact would be deemed “minimal” by most — to six years and three months does not approach the level of disproportionality seen in Ross, where a person convicted of larceny received a sentence of approximately 790 years. In my view, a sentence of six years and three months for any sexual contact with a child represents a permissible legislative choice. Western society has long criminalized sex with children. Ancient Roman law was among the first to specifically forbid sexual contact with children:

“ ‘The law imposed capital punishment upon those who ‘ravished a boy or a woman or anyone through force.’ Successful seduction of minors, when accomplished by persuasion and blandishments, rather than by crude force, was also punishable by death, while an unsuccessful attempt to seduce a minor merited the milder penalty of exile.’ ”

Charles A. Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton Hall Legis J 1, 7 (1997) (quoting James A. Brundage, Law, Sex, and Christian Society in Medieval Europe 47 (1987). English law included sexual crimes against children as early as the thirteenth century. Phipps, 22 Seton Hall Legis J at 8. American law followed suit, with sexual penetration crimes involving children well established by the early nineteenth century. Id. at 12.

*84 Oregon’s first criminal code criminalized “carnal knowledge” of children under the age of 14:

“If any person shall carnally know any female child, under the age of fourteen years, or shall forcibly ravish any woman of the age of fourteen years or upwards, such person shall be deemed guilty of rape, and upon conviction thereof, shall be punished by imprisonment * * * not less than three, not more than twenty years.”

General Laws of Oregon, Crim Code, ch 43, § 521, p 530 ( Deady 1845 -1864). Oregon raised the age of consent to 16 in 1895, but the punishment range remained between three and 20 years’ imprisonment. The Codes and Statutes of Oregon, title XIX, ch II, § 1760 (Belliner & Cotton 1901); see also Oregon Laws, title XIX, ch II, § 1912 (1920) (same). The rape statute remained essentially unchanged until 1953, when the legislature enacted the Oregon Revised Statutes. ORS 163.210 (1953) provided:

“(1) Any person over the age of 16 years who carnally knows any female child under the age of 16 years * * * is guilty of rape, and shall be punished upon conviction by imprisonment * * * for not more than 20 years.

“(2) Proof of actual penetration into the body is sufficient to sustain an indictment for rape.”

In 1970, the Criminal Law Revision Commission undertook a large scale revision of Oregon’s criminal statutes, including the statutes governing sexual offenses. The Commission proposed a new crime, sexual abuse, which was “intended to cover all unconsented acts of sexual conduct which do not involve the element of genital penetration.” Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code §§ 115 & 116, 122 (July 1970). The Commission also explained,

“Under the common law such conduct would have constituted an assault. Most state laws do not differentiate sexual from other assaults, except assaults with intent to rape or commit sodomy. Assault as defined in the draft requires the infliction of actual physical injury. It is contemplated that in many instances the conduct dealt with in sexual abuse *85 sections would not result in physical injury and, therefore, would not be covered by the assault article.”

Id.

The Commission drafted two statutory sections that defined two degrees of sexual abuse. The Commission defined first-degree sexual abuse as follows:

“(1) A person commits the crime of sexual abuse in the first degree when he subjects another person to sexual contact; and

“(a) The victim is less than 12 years of age; or

“(b) The victim is subjected to forcible compulsion by the actor.”

Id. § 116(1), 122. The proposed statute governing second-degree sexual abuse provided, in part:

“(1) A person commits the crime of sexual abuse in the second degree if he subjects another person to sexual contact; and

“(a) The victim does not consent to the sexual contact; or

“(b) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless.”

Id. § 115(1), 121. The Commission defined “sexual contact” as “any touching of the sexual or other intimate parts of a person * * * for the purpose of arousing or gratifying the sexual desire of either party.” Id. § 104, 104. The Commission explained that “[t]he inclusion of the words ‘or other intimate parts’ does not limit the touching to genitalia but is intended to include genitalia, breasts and whatever anatomical areas the trier of fact deems ‘intimate’ in the particular cases which arise.” Id. §§ 115 & 116,122.

The legislature codified those sections as ORS 163.425 (first-degree sexual abuse), ORS 163.415 (second-degree sexual abuse), and ORS 163.305(7) (definition of “sexual contact”) in 1971. First-degree sexual abuse was classified as a Class C felony, which carried a maximum penalty of five years’ imprisonment. ORS 161.605 (1971).

*86 The sexual abuse statutes were revised in 1991. Or Laws 1991, ch 830. First-degree sexual abuse was amended to raise the age of the victim from less than 12 years old to less than 14 years old. Id. § 3; ORS 163.427 (1991). First-degree sexual abuse was also redesignated a Class B felony, which carried a maximum penalty of ten years’ imprisonment. Or Laws 1991, ch 830, § 3; ORS 161.605(2) (1991). These changes to the first-degree sexual abuse statute reflect the legislature’s permissible choice to encompass more conduct within the first-degree sexual abuse statute and to punish that conduct more severely.

Felony sentencing in Oregon also changed during this time. Just prior to the changes in the sexual abuse statutes, the Oregon Felony Sentencing Guidelines, effective in 1989, reduced the trial court’s discretion in sentencing by establishing presumptive sentences based on the seriousness of the crime and on the defendant’s criminal history. State v. Davis, 315 Or 484, 486-87 , 847 P2d 834 (1993). The sentencing guidelines include a 99-block “Sentencing Guidelines Grid” to use in determining a presumptive sentence. On the grid, the court first locates the appropriate category of the crime of conviction on the Crime Seriousness Scale on the vertical axis of the grid, then locates the appropriate category for the convicted offender on the Criminal History Scale on the horizontal axis of the grid, and, finally, locates the grid block where the two categories intersect. Id. at 487 . Within that grid block is the presumptive sentence in the form of a range of months of imprisonment or a term of probation. State v. Ferman-Velasco, 333 Or 422, 426 , 41 P3d 404 (2002). Under the sentencing guidelines, a person with no criminal history convicted of first-degree sexual abuse would receive a sentence of 16-18 months’ imprisonment.

In 1994, the voters of Oregon chose, by adopting Measure 11, to curtail further the ability of the judicial branch to fashion sentences. The sentencing policy embodied in Measure 11 requires that all offenders guilty of criminal conduct subject to Measure 11 receive a mandatory minimum sentence, regardless of the circumstances of the crime, the victim, or the offender. As this court has explained in its previous cases, that policy choice, on its face, does not offend the Oregon Constitution. See, e.g., State ex rel Huddleston v. *87 Sawyer, 324 Or 597, 609-17 , 932 P2d 1145 (1997) (rejecting various state constitutional challenges to Measure 11). The court left open the possibility, however, of as-applied constitutional challenges to Measure 11 .Id. at 612. With regard to the cases now before us, I disagree with the majority’s methodology in assessing the as-applied challenges asserted in these cases as well as its ultimate conclusion that the Measure 11 sentences applied in these cases would violate Article I, section 16.

The majority’s test for whether a punishment shocks the moral sense of all reasonable people so as to violate Article I, section 16, includes an analysis of “at least 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 crimes; and (3) the criminal history of the defendant. 347 Or at 58. In my view, the only relevant factor is the first, which simply sets forth the two things that must be compared to determine whether a punishment is “proportioned” to the offense. See Wheeler, 343 Or at 655-56 (explaining that “proportioned” indicates a comparison between the penalty and the offense). Even as to that factor, however, I do not agree with any approach that places this court in the position of factfinder. Our role as an appellate court does not extend to applying our own characterizations about the defendant or the victim as a basis for answering the constitutional question before us.

My application of the first factor brings me to a different result from that of the majority. I agree with the majority’s statement outlining the applicable penalty: a mandatory sentence of 75 months’ — six years and three months’ — imprisonment, which, under Measure 11, may not be reduced by the trial court because of mitigating factors. I also agree that the applicable offense in each case is the conduct that led to the defendants’ convictions for first-degree sexual abuse. Where I disagree is in the majority’s characterization of that conduct — the “limited extent of the offenses.” 347 Or at 70. It is undisputed that both defendants were adults significantly older than their child victims, who were both less than 14 years old. It is undisputed that both defendants were entrusted with the care of their child victims. Defendant Buck’s conduct consisted of his hand touching his *88 victim’s clothed buttocks at least two times. Defendant Rodriguez’s conduct consisted of touching the back of her victim’s head with her clothed breasts in the presence of several witnesses.

The majority focuses on the fact that there is no evidence of physical injury or harm in these cases. Neither is there evidence that the victim suffered no injury, because the statutes defining the crime, ORS 163.427(l)(a)(A) and ORS 163.305(6), do not require the state to prove that the victim suffered any particular harm. Nor is the lack of harm a defense to the crime. Determining whether or not the victim suffered harm is exactly the kind of determination that this appellate court is ill-equipped to make. The court should not rely on conjecture or its own characterization of facts that have not been found by the factfinder below. For example, what if the victims here had been nine years old instead of 12 and 13 years old? Would that change our Article I, section 16, analysis? If so, based on what? The court is ill-equipped to assess the gravity of harm suffered by the child victims in these cases based on the court’s own opinions of the facts and the gravity of the case.

Moreover, as this court recognized in Wheeler, 343 Or at 679-80 , “[s]ex crimes may or may not result in permanent physical injury, but the legislature is entitled to presume that they are a serious matter in light of the potential for both physical and psychological injury * * (Emphasis added.) The legislature has determined that a child cannot consent to a sexual act in any circumstances, including those circumstances that do not include evidence of harm. See ORS 163.315(l)(a) (“A person is considered incapable of consenting to a sexual act if the person is * * * [u]nder 18 years of age[.]”). It cannot be disputed that the legislature was entitled to make that determination.

The majority also focuses on the breadth of the conduct encompassed by the first-degree sexual abuse statute, apparently accepting defendants’ argument that, “when a criminal statute is extremely broad and the conduct in a particular case is at the margins of the offense,” a court should consider whether that conduct is less grave and less deserving of the same punishment than is conduct at the heart of *89 the offense. For example, defendants contrast their conduct — pressing victim’s head against a woman’s clothed breasts or touching victim’s clothed buttocks — with prolonged hand-to-genital contact or with forcing a child to engage in bestiality. The majority endorses a similar comparison, and states that,

“[Reasonable people — one is tempted to say, all reasonable people — would agree that the conduct in which defendants engaged here is far less severe, wrongful, immoral, or harmful to a victim than at least one other form of first-degree sexual abuse — intentionally causing a person under 18 to engage in bestiality.”

347 Or at 71. Even though that may be true, it is just as reasonable for the legislature to conclude that any sexual contact with a child under 14 years of age is a serious crime warranting a minimum prison sentence in every case. Reasonable minds may also agree that the legislature — or the people exercising the initiative power- — erred in judgment, not when it included the conduct at issue in this case within a crime that is subject to a 75-month mandatory sentence, but when it failed to impose a sentence for bestiality or other more “grave” sexual contact with children that was greater than 75 months. When the legislature chooses between reasonable options, this court should not second-guess that choice, even if, as a policy matter, the court disagrees with the choice.

In my view, the legislature is entitled to presume that all acts committed against children “for the purpose of arousing or gratifying the sexual desire of either party,” as occurred here, are serious offenses in light of the potential for both physical and psychological injury. Even if the conduct in both cases was less grave than many other reported first-degree sexual abuse cases, I emphasize that the factfinder in each case determined beyond a reasonable doubt that defendants acted with a sexual purpose when they touched their victims. When a child is subjected to intimate touching for a sexual purpose, even if the touching is not prolonged or occurs through clothing, that child is violated in a very specific manner. The legislature — or the people exercising their law-making authority through the initiative process— reasonably may determine that such behavior is sufficiently *90 serious that it should be punishable through mandatory minimum sentencing. A sentence of just over six years for sexual contact with a child less than 14 years of age is not the type of shockingly disproportionate penalty that Article I, section 16, prohibits. In fact, it is even less shocking than sentences that this court has upheld in the face of Article I, section 16, challenges. See, e.g., State v. Teague, 215 Or 609, 611 , 336 P2d 338 (1959) (a 12-year sentence for forgery did not violate Article I, section 16). This case is not one of those rare or extreme cases where the constitution requires the judiciary to take action. I agree with the majority that Article I, section 16, is “not merely an aspirational statement” and that Article I, section 16, does impose a limit on the severity of punishment. Where the legislature has overstepped its broad authority in determining punishments, it is the judiciary’s duty under Article I, section 16, to step in. Here, the legislature has not overstepped its authority in mandating a sentence of six years and three months for a sexual offense involving children under 14 years of age. Therefore, the judiciary need not step in.

In addition to my disagreement with the majority’s application of the first factor it lists as relevant to the Article I, section 16, inquiry, I take issue with the application of the second and third factors. Those factors stray from the comparison of the penalty and offense at issue in Article I, section 16, challenges and, instead, lead the court to second-guess the legislature’s judgment. Comparing the penalty for first-degree sexual abuse with the penalties assigned to other crimes — even other sex offenses — oversteps the role of the judiciary. That is especially true, where, as the majority does here, the court offers its own opinion as to the policy decisions of the legislature in defining the crime and assigning the penalty. This case does not present a special circumstance, as in Shumway or Cannon , in which the law punished a lesser-included offense more harshly than the greater offense. In this case, we should not substitute our own assessment of a crime’s seriousness for that of the legislature. 1

*91 Similarly, reviewing a defendant’s criminal history is beyond what is necessary to determine whether the penalty is proportioned to the offense. If courts start looking to facts outside the offense to determine whether Article I, section 16, has been violated, all manner of issues arise. How should a court decide what circumstances bear on the analysis? What if both defendants had a criminal history of theft or driving while under the influence of intoxicants? What if defendants had been arrested for but not convicted of prior sex offenses? How would those facts affect the analysis and the outcome? Opening up the proportionality inquiry to facts beyond the offense and the penalty will lead to inconsistent results. 2

I note that the legislature has exercised its authority, under Article IV, section 33, of the Oregon Constitution, which the people adopted together with Measure 11 in 1994, to allow for departures from Measure 11 sentences for certain sex offenses, based on facts outside the definition of the offense itself. 3 In ORS 137.712, the legislature provided for downward departures for certain offenses in certain circumstances. That statute provides, in part:

“(l)(a) Notwithstanding ORS 137.700 and 137.707, when a person is convicted of * * * sexual abuse in the first degree as defined in ORS 163.427(l)(a)(A) * * *, the court may impose a sentence according to the rules of the Oregon Criminal Justice Commission that is less than the minimum sentence that otherwise may be required by ORS 137.700 or 137.707 if the court, on the record at sentencing, makes the findings set forth in subsection (2) of this section and finds that a substantial and compelling reason under *92 the rules of the Oregon Criminal Justice Commission justifies the lesser sentence.

“(2) A conviction is subject to subsection (1) of this section only if the sentencing court finds on the record by a preponderance of the evidence:

“(e) If the conviction is for rape in the second degree, sodomy in the second degree or sexual abuse in the first degree:

“(A) That the victim was at least 12 years of age, but under 14 years of age, at the time of the offense;

“(B) That the defendant does not have a prior conviction for a crime listed in subsection (4) of this section;

“(C) That the defendant has not been previously found to be within the jurisdiction of a juvenile court for an act that would have been a felony sexual offense if the act had been committed by an adult;

“(D) That the defendant was no more than five years older than the victim at the time of the offense;

“(E) That the offense did not involve sexual contact with any minor other than the victim; and

“(F) That the victim’s lack of consent was due solely to incapacity to consent by reason of being under 18 years of age at the time of the offense.”

(Emphasis added.) That statute demonstrates that, if the legislature had desired to create an exception for circumstances in which no evidence of physical, emotional, or psychological injury existed, in which the sexual contact was brief or minimal, or in which the defendant had no criminal history, it could have done so.

Although I and, indeed, many members of the judicial branch may prefer a more enlightened sentencing scheme that would permit courts to sentence an offender in accordance with evidence-based practices that, in each case, are more likely to reduce offender recidivism and further community safety than does a mandatory minimum sentencing scheme, 4 the voters, exercising their legislative authority *93 through the initiative process, have mandated that certain crimes receive certain minimum punishments. Even though the guideline sentences that the trial courts imposed in each case at issue here perhaps were sufficient to serve the criminal justice goals of accountability, reformation, and community safety, those guidelines sentences were contrary to the sentencing law of this state. As this court stated in Ferman-Velasco , “[Measure 11] represents the most recent legislative enactment demonstrating the seriousness with which the legislative branch views Measure 11 crimes, including defendant’s crimes.” 333 Or at 431 . The sentences required by Measure 11 in these cases were not grossly disproportionate to the offenses so as to violate Article I, section 16.1 therefore dissent.

Gillette and Walters, JJ., join in this opinion.

Again, I point out that, contrary to the majority's assertions, reasonable minds may disagree on whether the legislature made a bad policy decision in failing to sentence other sexual offenses, such as second-degree rape or second-degree *91 sodomy, to a higher term of imprisonment than first-degree sexual abuse. That possible error in policy, however, does not violate Article I, section 16, which is reserved for the most grossly disproportionate penalties.

I note that the three cases relied on by the majority for its consideration of the defendants’ criminal history all involve challenges to recidivist statutes, where naturally an evaluation of criminal history would occur. See Wheeler, 343 Or at 654 ; Jensen, 231 Or at 143 ; Smith, 128 Or at 520 .

Article IV, section 33, of the Oregon Constitution, provides:

“Notwithstanding the provisions of section 25 of this Article, a two-thirds vote of all the members elected to each house shall be necessary to pass a bill that reduces a criminal sentence approved by the people under section 1 of this Article.”

See, e.g., Michael A. Wolff and Paul J. De Muniz, Mainstream Sentencing— The Urgent Need for Reform, Judicature 1 (Jan-Feb 2009) (arguing the state and *93 federal courts should adopt evidence-based practices to sentence offenders based on concerns about public safety and public values).