Text of OR SB 704 (2021)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 81st OREGON LEGISLATIVE ASSEMBLY--2021 Regular Session Senate Bill 704 Sponsored by Senators WAGNER, LIEBER, PROZANSKI, RILEY, Representatives NOSSE, POWER, SOLLMAN, WILDE; Senators DEMBROW, MANNING JR (at the request of Basic Rights Oregon) 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. Provides that discovery of victim’s actual or perceived gender, gender identity, gender ex- pression or sexual orientation does not constitute reasonable explanation for extreme emotional disturbance for purposes of affirmative defense to murder in the second degree. Provides that person is not justified in using physical force upon other person if person would not have used physical force but for discovery of other person’s actual or perceived gender, gender identity, gender expression or sexual orientation. A BILL FOR AN ACT Relating to prohibiting defenses based on certain characteristics of the victim; creating new pro- visions; and amending ORS 161.215 and 163.135. Be It Enacted by the People of the State of Oregon: SECTION 1. ORS 163.135 is amended to read: 163.135. (1) It is an affirmative defense to murder in the second degree for purposes of ORS 163.115 (1)(a) that the homicide was committed under the influence of extreme emotional disturbance if the disturbance is not the result of the person’s own intentional, knowing, reckless or criminally negligent act and if there is a reasonable explanation for the disturbance. The reasonableness of the explanation for the disturbance must be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances that the actor reasonably believed them to be. Extreme emotional disturbance does not constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. (2)(a) The defendant may not introduce in the defendant’s case in chief expert testimony re- garding extreme emotional disturbance under this section unless the defendant gives notice of the defendant’s intent to do so. [(3)] (b) The notice required must be in writing and must be filed at the time the defendant pleads not guilty. The defendant may file the notice at any time after the defendant pleads but be- fore trial if the court determines that there was just cause for failure to file the notice at the time of the defendant’s plea. [(4)] (c) If the defendant fails to file notice, the defendant may not introduce evidence for the purpose of proving extreme emotional disturbance under ORS 163.115 unless the court, in its dis- cretion, determines that there was just cause for failure to file notice. [(5)] (3) After the defendant files notice as provided in subsection (2) of this section, the state may have at least one psychiatrist or licensed psychologist of its selection examine the defendant in the same manner and subject to the same provisions as provided in ORS 161.315. (4) The discovery of, knowledge about or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression or sexual orientation, including but not NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted. New sections are in boldfaced type. LC 1464 SB 704 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 limited to circumstances in which the victim made a romantic or sexual advance that was unwanted but did not involve force toward the defendant, does not constitute a reasonable explanation for an extreme emotional disturbance under this section. (5) As used in this section, “gender identity” has the meaning given that term in ORS 166.155. SECTION 2. ORS 161.215 is amended to read: 161.215. (1) Notwithstanding ORS 161.209, a person is not justified in using physical force upon another person if: [(1)] (a) With intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by that person[; or]. [(2)] (b) The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and ef- fectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force[; or]. [(3)] (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (d) The person would not have used physical force but for the discovery of the other person’s actual or perceived gender, gender identity, gender expression or sexual orientation. (2) As used in this section, “gender identity” has the meaning given that term in ORS 166.155. SECTION 3. The amendments to ORS 161.215 and 163.135 by sections 1 and 2 of this 2021 Act apply to conduct occurring on or after the effective date of this 2021 Act. [2]

81st OREGON LEGISLATIVE ASSEMBLY--2021 Regular Session Enrolled Senate Bill 704 Sponsored by Senators WAGNER, LIEBER, PROZANSKI, RILEY, Representatives NOSSE, POWER, SOLLMAN, WILDE; Senators DEMBROW, FREDERICK, GELSER, JAMA, MANNING JR, Representatives ALONSO LEON, CAMPOS, DEXTER, GOMBERG, GRAYBER, HUDSON, KOTEK, KROPF, MARSH, PRUSAK, REARDON, REYNOLDS, SALINAS, VALDERRAMA, WILLIAMS (at the request of Basic Rights Oregon) CHAPTER ................................................. AN ACT Relating to prohibiting defenses based on certain characteristics of the victim; creating new pro- visions; and amending ORS 161.215 and 163.135. Be It Enacted by the People of the State of Oregon: SECTION 1. ORS 163.135 is amended to read: 163.135. (1) It is an affirmative defense to murder in the second degree for purposes of ORS 163.115 (1)(a) that the homicide was committed under the influence of extreme emotional disturbance if the disturbance is not the result of the person’s own intentional, knowing, reckless or criminally negligent act and if there is a reasonable explanation for the disturbance. The reasonableness of the explanation for the disturbance must be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances that the actor reasonably believed them to be. Extreme emotional disturbance does not constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. (2)(a) The defendant may not introduce in the defendant’s case in chief expert testimony re- garding extreme emotional disturbance under this section unless the defendant gives notice of the defendant’s intent to do so. [(3)] (b) The notice required must be in writing and must be filed at the time the defendant pleads not guilty. The defendant may file the notice at any time after the defendant pleads but be- fore trial if the court determines that there was just cause for failure to file the notice at the time of the defendant’s plea. [(4)] (c) If the defendant fails to file notice, the defendant may not introduce evidence for the purpose of proving extreme emotional disturbance under ORS 163.115 unless the court, in its dis- cretion, determines that there was just cause for failure to file notice. [(5)] (3) After the defendant files notice as provided in subsection (2) of this section, the state may have at least one psychiatrist or licensed psychologist of its selection examine the defendant in the same manner and subject to the same provisions as provided in ORS 161.315. (4) The discovery of, knowledge about or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression or sexual orientation, including but not limited to circumstances in which the victim made a romantic or sexual advance that was unwanted but did not involve force toward the defendant, does not constitute a reasonable explanation for an extreme emotional disturbance under this section. Enrolled Senate Bill 704 (SB 704-INTRO) Page 1 (5) As used in this section, “gender identity” has the meaning given that term in ORS 166.155. SECTION 2. ORS 161.215 is amended to read: 161.215. (1) Notwithstanding ORS 161.209, a person is not justified in using physical force upon another person if: [(1)] (a) With intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by that person[; or]. [(2)] (b) The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and ef- fectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force[; or]. [(3)] (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (d) The person would not have used physical force but for the discovery of the other person’s actual or perceived gender, gender identity, gender expression or sexual orientation. (2) As used in this section, “gender identity” has the meaning given that term in ORS 166.155. SECTION 3. The amendments to ORS 161.215 and 163.135 by sections 1 and 2 of this 2021 Act apply to conduct occurring on or after the effective date of this 2021 Act. Passed by Senate April 14, 2021 .................................................................................. Lori L. Brocker, Secretary of Senate .................................................................................. Peter Courtney, President of Senate Passed by House May 13, 2021 .................................................................................. Tina Kotek, Speaker of House Received by Governor: ........................M.,........................................................., 2021 Approved: ........................M.,........................................................., 2021 .................................................................................. Kate Brown, Governor Filed in Office of Secretary of State: ........................M.,........................................................., 2021 .................................................................................. Shemia Fagan, Secretary of State Enrolled Senate Bill 704 (SB 704-INTRO) Page 2