« Intriguing Tenth Circuit opinion involving victim impact letter | Main | NPR coverage of cocaine developments »

December 26, 2007

Fascinating proportionality opinion from Oregon court

A helpful reader alerted me to a fascinating opinion from the Oregon Court of Appeals in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here).  Both the underlying facts and the legal discussion in this case are noteworthy, and these lengthy excerpts provide only a small flavor of an opinion worth reading in full:

In early 2004, defendant [Victoria Rodriguez] was employed by the Hillsboro Boys and Girls Club to work with at-risk youths....  The victim was a member of the club....  On February 14, 2005, a staff member ... saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room.  The victim, who had since turned 13, was sitting on a chair.  Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts.... The contact lasted approximately one minute....

Defendant was eventually charged with first-degree sexual abuse based on the incident.  A jury found defendant guilty....  At sentencing, the prosecutor asked the court to impose the 75-month sentence prescribed by ORS 137.700 (commonly referred to as "Measure 11").  Defendant objected, arguing that the Measure 11 sentence would be unconstitutionally excessive.  Numerous family members, friends, and coworkers testified in support of defendant.  The court agreed with defendant that a 75-month sentence would be cruel and unusual.  The court observed that defendant had no prior criminal record and that she had "lived an exemplary life" and had "really made a very positive impact into the lives of apparently many children * * *." It further noted that the touching occurred "in a crowded room, over clothing, [and was] not prolonged."  The court concluded that a 75-month sentence "just cries out" as being shocking to any reasonable person.  It imposed a 16-month sentence.  This appeal followed....

The state contends, among other things, that, given the nature of the relationship between defendant and the victim, the 75-month sentence mandated by Measure 11 would not shock the moral sense of all reasonable people....  We agree with the state that, given the nature of the relationship between defendant and the victim, there can be no doubt that the Measure 11 sentence would not shock the moral sense of all reasonable people.  It is undisputed that the victim was young and vulnerable, a prototypical "at-risk" youth. Defendant was in a position of trust and responsibility, akin to that of a teacher or youth counselor, charged with helping children make appropriate behavioral choices.  By engaging in sexual conduct with the victim, defendant seriously abused that trust.

In short, we cannot say that the 75-month sentence required under Measure 11 would shock the moral sense of all reasonable people as to what is right and proper under the circumstances.  It follows that the trial court erred in refusing to impose that sentence.

December 26, 2007 at 11:08 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e54fc6d4e28834

Listed below are links to weblogs that reference Fascinating proportionality opinion from Oregon court:

Comments

75-months for that?

Posted by: EJ | Dec 27, 2007 2:01:08 AM

It is interesting to note that the defendant raised the claim of insufficiency of the evidence. I assume she raised this as a constitutional issue under the Due Process clause, e.g., Jackson v. Virginia. The state court dismissed this claim as follows:

"Defendant cross-appeals, arguing that there is insufficient evidence to support her conviction. On defendant's cross-appeal, we affirm without discussion."

It will be interesting to see how this case is resolved if the defendant files a federal petition for habeas.

Posted by: Tim Holloway | Dec 27, 2007 9:24:57 AM

I think the sufficiency issue is a very close one. Unfortunately for the defendant, there was other evidence that suggested that she had the hots for the kid, and that evidence probably gets the case over the hump. Absent that other evidence, I don't see how these acts fall under the statute.

In any event, the sentence is harsh, but we don't make exceptions to general rules because a sentence may offend some people's sense of justice. When you start doing that, you open the door for lenience that is not justified, and judges, collectively, have shown that they simply cannot be trusted.

Posted by: federalist | Dec 27, 2007 12:03:28 PM

"we don't make exceptions to general rules because a sentence may offend some people's sense of justice" -- so you think the 8th Amendment's prohibition on cruel & unusual punishment has no individual application?

Posted by: JustClerk | Dec 27, 2007 1:19:34 PM

not in cases like this. The bottom line is that once you concede that the conduct fell under the statute (debatable, I concede), then I don't think that much of an Eighth Amendment challenge can be made. Six years for sexual play with a 13 year old? I don't see the 8th Amendment challenge here.

Posted by: federalist | Dec 27, 2007 1:28:32 PM

So since judges can't be trusted and the justice system is flawed, lets unjustly punish individuals in the name of not opening the door for leniency!!!!
This type of thinking and logic is exactly why these knee jerk laws are in place today. Its appauling to me that legislators and prosecutors can't see a way to protect victims without collateral damage.

Posted by: anthony | Dec 28, 2007 12:02:28 AM

federalist, you call that sexual play? Probably most every mother on the planet was guilty at one time or another of this specific crime.

How many years could you get based on rumors,? Most everyone could get a least a few.

Posted by: George | Dec 28, 2007 1:21:33 AM

No George, I do not. Perhaps, if you read my posts, you wouldn't mischaracterize what I am saying. My posts make it clear that the sufficiency issue is a problem for this conviction.

Posted by: federalist | Dec 28, 2007 11:11:20 AM

Your not going to get anyone to be reasonable. The stats in most things i have seen are that 20% of the kids will be molested before they are 18. And 90% of all sex crimes don't get reported. And that most are commited by people they know. Also convicted sex offenders have a better then 80% track record of not reoffending. and so if all these crimes are being commited and all these childred being molested. Who is doing this and not being caught? WEll it's their Mom that hugs them or their father that might bath them.But its also the same who do other stuff and its never told. Maybe we need a law to have all children that go to school interview twice a year to see if we can catch this 90% and then we can have so many more in jail and make sure all these people are off the street or maybe tracked for life so they can't hurt their children any more.

Posted by: yougottobekidding | Dec 6, 2008 11:02:37 PM

I HAVE A FRIEND THAT IS GETTING SENTENCED TOMORROW,FOR SOMETHING HE DIDN'T DO, AND THE GIRL EVEN SAID HE DIDN'T DO IT,IT WAS HIS COUSIN THAT DID, AND HIM AND THE COUSIN WERE ACCUSED OF RAPING HER,OR SEX ABUSE, WELL THE COUSIN GOT OFF ON ALL CHARGES..AND HE IS GOING TO GET THAT MEASURE 11 TOMORROW...WHEN THE GIRL CLEARLY STATED THAT HE DIDN'T DO NOTHING AND SHE CONSENTED TO HAVING SEX WITH THE OTHER GUY..BUT AT THE END SHE CHANGED HER STORY,I'M TRYING TO HELP HIM BUT I HAVE NO IDES WHAT TO DO...HE IS A GOOD KID...NEVER BEEN IN TROUBLE PLAYED SPORTS, WORKED FOR KIDS UNLIMITED...TEACHING KIDS HOW TO PLAY BALL..AND STUFF...AND THEN THE GIRL CAME OVER HERE AFTER THE GOT PUT IN JAIL..BRAGGING ABOUT SLEEPIN WITH 3 GUYS AND TRYING TO MAKE MOVES ON MY SON,HAD TO KICK HER OUT OF MY HOUSE...SYSTEM IS MESSED UP

Posted by: SHELL | Mar 1, 2010 6:54:45 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB