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Oregon Criminalizes Sex with Prisoners; & Other Legislative Developments

In the wake of a huge scandal involving several high ranking, veteran prison officials engaging in sexual activity with female prisoners of the Coffee Creek Correctional Institution, Oregon has enacted legislation criminalizing custodial sexual misconduct.

The law, which became effective July 13, 2005, creates the offenses of Custodial Sexual Misconduct in the First Degree, a Class C felony punishable by up to 5 years in prison and Custodial Sexual Misconduct in the Second-Degree, a Class A misdemeanor punishable by up to 1 year in jail.

It is a felony for any person employed by or under contract with the state or local agency that" is the arresting, confining or supervisory agency, to engage in sexual intercourse or deviate sexual intercourse with...or penetrate the vagina, anus or penis of another...with any object other than the penis or mouth of the actor" if the other person is (A) In the custody of a law enforcement agency following arrest; (B) Confined or detained in a correctional facility; (C) Participating in an inmate or offender work crew or work release program; or (D) On probation, parole, post-prison supervision or other form of conditional or supervised release[.]
It is a misdemeanor for employees or contractors to engage in any other sexual contact" with a prisoner or offender described above. However, the law does not define sexual contact.

Consent of the prisoner or offender is expressly precluded as a defense to prosecution," because the power differential between prisoners and those with authority over them makes consent impossible. However, lack of supervisory authority over the other person...when [that]...person is on probation, parole, post-prison supervision or other forms of conditional or supervised release," is an affirmative defense to prosecution." The law also exempts penetration if that is part of a medically recognized treatment or diagnostic procedure; order to search for weapons, contraband or evidence of crime." See: 2005 Oregon Laws, Chapter 488.
As we've previously reported, a similar Pennsylvania law withstood a constitutional challenge by a female guard who was prosecuted for engaging in oral sex and other sexual contact with at least three prisoners. A unanimous Pennsylvania Supreme Court rejected her claims that the statute was unconstitutionally vague, overbroad and violative of due process for lacking an expressed mens rea requirement. See: Pennsylvania Statute Banning Sex between Staff and Prisoners Upheld, [PLN, March 2005, p. 34]. We are not aware of anyone being prosecuted under the Oregon legislation yet.

The 2005 Oregon Legislature also enacted Senate Bill 181, which amended ORS 30.643 to authorize a court on its own motion or on the motion of a public body," to review if the pleadings are the inmate in an action against a public body at the time a request for waiver or deferral of filing fees or court costs is made. If the court finds that the pleadings failed to state a claim for which relief may be granted, the court may decline to waive payment filing fees or court costs." The amendment becomes effective January 1, 2006. See: 2005 Oregon Laws, Chapter 530.

Senate Bill 181 was part of a larger effort by ODOC officials to enact provisions akin to those of the federal Prison Litigation Reform Act (PLRA), and which were designed to make it more difficult for prisoners to access the courts and outside regulatory agencies. ODOC introduced House Bill 2140 which would have required prisoners to exhaust administrative remedies before filing complaints with health professional regulatory boards. House Bill 2143 would have required prisoners to exhaust all administrative remedies before filing actions against a public body. It also provided that in an action for loss or destruction of property, a prisoner may recover only an amount equal to the lost or destroyed property.

Opponents of HB 2140 and HB 2143 included Western Prison Project, ACLU and Michelle Burrows, class counsel in Anstett v. Oregon, USDC No. CV-1619-BR, related to ODOC's failure to treat prisoners infected with the hepatitis C virus.

The Director of the Oregon Psychological Examiners Board expressed concerns about HB 2140, while opponents testified to countless medical care and grievance abuses by ODOC.

Those testifying in favor of the Legislation were ODOC Director Max Williams and ODOC Chief Medical Examiner Steven Shelton, MD. In an ironic twist of fate, however, it appears that it was Dr. Shelton's embarrassing temper tantrum during a January 20, 2005 hearing before the Judiciary Committee that killed the bills. Legislators were noticeably irritated by Dr. Shelton's note book throwing outburst in response to testimony about the federal court's critical findings against ODOC in Anstett. Neither bill moved any further. Thank you Dr. Shelton!

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