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Posts tagged as “sex abuses”

Inability to testify = no crime


Sara Gelser

How about this for a perverse structuring of the law: Commit an awful crime against someone who - maybe because of very young or old age or physical disability - cannot testify, and you can't be touched by law enforcement even if you confess.

Call it a loophole in the law, currently on the books in Oregon. The House has, though, just unanimously passed House Bill 2441, which aims to fix it.

It stems from a normally-reasonable standard, that a person cannot be convicted solely on the basis of confession. In the case of most offenses, that's not ordinarily a big issue. But it can be the cases of assault, especially sexual assaults, against some disabled people. Representative Sara Gelser, D-Corvallis, has cited a pair of recent state Supreme Court cases where the problem emerged:

In 2007, the Supreme Court overturned Michael Simons' convictions of rape, sodomy, unlawful sexual penetration, and sexual abuse against three elderly patients in a memory care facility despite the Simons' confession to the crimes. (Oregon v. Simons)

In 2008, the Supreme Court overturned a conviction for first-degree sodomy and first degree sexual abuse against a toddler, despite the defendant’s confession (Oregon v. Delp). In the Delp case, the Supreme Court opinion read, in part: “This issue requires us to confront. . . the difficult problem that arises ... when the victim of a confessed crime is incapable of recounting—or perhaps even perceiving—the injury or harm to himself or herself, and the record does not contain physical evidence of such an injury or harm.”

Care has to be taken in these kind of cases that the confessions be cleanly obtained, and the bill looks cautiously drawn, as it should. (It requires, for example, that a court "Whether there is evidence demonstrating the truthfulness of portions of the confession; Whether the defendant had the opportunity to commit the crime; The method of interrogation used to solicit the confession.") But these kind of offenses need to be prosecuted, which you can only do meaningfully if there's a realistic way to convict.