Title 163 · ORS Chapter 163

164.365; �� (C) Burglary in the first degree as defined in ORS 164.225; �� (D) Escape in the first degree as defined in ORS 162.165; �� (E) Kidnapping in the second degree as defined in OR

Citation: ORS 164.365

Section: 164.365

164.365;

�� (C) Burglary in the first degree as defined in ORS 164.225;

�� (D) Escape in the first degree as defined in ORS 162.165;

�� (E) Kidnapping in the second degree as defined in ORS 163.225;

�� (F) Kidnapping in the first degree as defined in ORS 163.235;

�� (G) Robbery in the first degree as defined in ORS 164.415;

�� (H) Any felony sexual offense in the first degree defined in this chapter;

�� (I) Compelling prostitution as defined in ORS 167.017; or

�� (J) Assault in the first degree, as defined in ORS 163.185, and the victim is under 14 years of age, or assault in the second degree, as defined in ORS 163.175 (1)(a) or (b), and the victim is under 14 years of age; or

�� (c) By abuse when a person, recklessly under circumstances manifesting extreme indifference to the value of human life, causes the death of a child under 14 years of age or a dependent person, as defined in ORS 163.205, and:

�� (A) The person has previously engaged in a pattern or practice of assault or torture of the victim or another child under 14 years of age or a dependent person; or

�� (B) The person causes the death by neglect or maltreatment.

�� (2) An accusatory instrument alleging murder by abuse under subsection (1)(c) of this section need not allege specific incidents of assault or torture.

�� (3) It is an affirmative defense to a charge of violating subsection (1)(b) of this section that the defendant:

�� (a) Was not the only participant in the underlying crime;

�� (b) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission thereof;

�� (c) Was not armed with a dangerous or deadly weapon;

�� (d) Had no reasonable ground to believe that any other participant was armed with a dangerous or deadly weapon; and

�� (e) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death.

�� (4) It is an affirmative defense to a charge of violating subsection (1)(c)(B) of this section that the victim was a dependent person who was at least 18 years of age and was under care or treatment solely by spiritual means pursuant to the religious beliefs or practices of the dependent person or the guardian of the dependent person.

�� (5) Except as otherwise provided in ORS 144.397 and 163.155:

�� (a) A person convicted of murder in the second degree, who was at least 15 years of age at the time of committing the murder, shall be punished by imprisonment for life.

�� (b) When a defendant is convicted of murder in the second degree under this section, the court shall order that the defendant shall be confined for a minimum of 25 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary leave or employment at a forest or work camp.

�� (c) At any time after completion of a minimum period of confinement pursuant to paragraph (b) of this subsection, the State Board of Parole and Post-Prison Supervision, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue is whether the prisoner is likely to be rehabilitated within a reasonable period of time. At the hearing the prisoner has:

�� (A) The burden of proving by a preponderance of the evidence the likelihood of rehabilitation within a reasonable period of time;

�� (B) The right, if the prisoner is without sufficient funds to employ an attorney, to be represented by legal counsel, appointed by the board, at board expense; and

�� (C) The right to a subpoena upon a showing of the general relevance and reasonable scope of the evidence sought, provided that any subpoena issued on behalf of the prisoner must be issued by the State Board of Parole and Post-Prison Supervision pursuant to rules adopted by the board.

�� (d) If, upon hearing all of the evidence, the board, upon a unanimous vote of three board members or, if the chairperson requires all voting members to participate, a unanimous vote of all voting members, finds that the prisoner is capable of rehabilitation and that the terms of the prisoner�s confinement should be changed to life imprisonment with the possibility of parole, release to post-prison supervision or work release, it shall enter an order to that effect and the order shall convert the terms of the prisoner�s confinement to life imprisonment with the possibility of parole, release to post-prison supervision or work release and may set a release date. Otherwise, the board shall deny the relief sought in the petition.

�� (e) If the board denies the relief sought in the petition, the board shall determine the date of the subsequent hearing, and the prisoner may petition for an interim hearing, in accordance with ORS 144.285.

�� (f) The board�s final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the board�s order.

�� (6) As used in this section:

�� (a) �Assault� means the intentional, knowing or reckless causation of physical injury to another person. �Assault� does not include the causation of physical injury in a motor vehicle accident that occurs by reason of the reckless conduct of a defendant.

�� (b) �Neglect or maltreatment� means a violation of ORS 163.535, 163.545 or 163.547 or a failure to provide adequate food, clothing, shelter or medical care that is likely to endanger the health or welfare of a child under 14 years of age or a dependent person. This paragraph is not intended to replace or affect the duty or standard of care required under ORS chapter 677.

�� (c) �Pattern or practice� means one or more previous episodes.

�� (d) �Torture� means the intentional infliction of intense physical pain upon an unwilling victim as a separate objective apart from any other purpose. [1971 c.743 �88; 1975 c.577 �1; 1979 c.2 �1; 1981 c.873 �5; 1985 c.763 �1; 1989 c.985 �1; 1993 c.664 �1; 1995 c.421 �3; 1995 c.657 �1; 1997 c.850 �2; 1999 c.782 �4; 2007 c.717 �2; 2009 c.660 �7; 2009 c.785 �1; 2011 c.291 �1; 2015 c.820 �46; 2019 c.634 �28; 2019 c.635 �4]

�� 163.116 [1979 c.2 �3; repealed by 1981 c.873 �9]

�� 163.117 Causing or aiding suicide as defense to charge of murder. It is a defense to a charge of murder that the defendant�s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this section shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter or any other crime. [1981 c.873 �8]

�� 163.118 Manslaughter in the first degree. (1) Criminal homicide constitutes manslaughter in the first degree when:

�� (a) It is committed recklessly under circumstances manifesting extreme indifference to the value of human life;

�� (b) It is committed intentionally by a defendant under the influence of extreme emotional disturbance as provided in ORS 163.135, which constitutes a mitigating circumstance reducing the homicide that would otherwise be murder to manslaughter in the first degree and need not be proved in any prosecution;

�� (c) A person recklessly causes the death of a child under 14 years of age or a dependent person, as defined in ORS 163.205, and:

�� (A) The person has previously engaged in a pattern or practice of assault or torture of the victim or another child under 14 years of age or a dependent person; or

�� (B) The person causes the death by neglect or maltreatment, as defined in ORS 163.115; or

�� (d) It is committed recklessly or with criminal negligence by a person operating a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 and:

�� (A) In the 10 years prior to the date of the current offense the person has been convicted of at least three of any of the following offenses in any combination:

�� (i) Driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction;

�� (ii) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicants or any combination thereof; or

�� (iii) An offense in another jurisdiction that involved driving or operating a vehicle, an aircraft or a boat while having a blood alcohol content above that jurisdiction�s permissible blood alcohol content; or

�� (B)(i) The person has a previous conviction for any of the crimes described in subsection (2) of this section, or their statutory counterparts in any jurisdiction; and

�� (ii) The victim�s serious physical injury in the previous conviction was caused by the person driving a motor vehicle.

�� (2) The previous convictions to which subsection (1)(d)(B) of this section applies are:

�� (a) Assault in the first degree under ORS 163.185;

�� (b) Assault in the second degree under ORS 163.175; or

�� (c) Assault in the third degree under ORS 163.165.

�� (3) Manslaughter in the first degree is a Class A felony.

�� (4) It is an affirmative defense to a charge of violating:

�� (a) Subsection (1)(c)(B) of this section that the victim was a dependent person who was at least 18 years of age and was under care or treatment solely by spiritual means pursuant to the religious beliefs or practices of the dependent person or the guardian of the dependent person.

�� (b) Subsection (1)(d)(B) of this section that the defendant was not under the influence of intoxicants at the time of the conduct that resulted in the previous conviction.

�� (5) As used in this section, �intoxicant� has the meaning given that term in ORS 801.321. [1975 c.577 �2; 1981 c.873 �6; 1997 c.850 �3; 2007 c.867 �2; 2011 c.291 �2; 2021 c.480 �4; 2023 c.498 �23]

�� 163.120 [Repealed by 1971 c.743 �432]

�� 163.125 Manslaughter in the second degree. (1) Criminal homicide constitutes manslaughter in the second degree when:

�� (a) It is committed recklessly;

�� (b) A person intentionally causes or aids another person to commit suicide; or

�� (c) A person, with criminal negligence, causes the death of a child under 14 years of age or a dependent person, as defined in ORS 163.205, and:

�� (A) The person has previously engaged in a pattern or practice of assault or torture of the victim or another child under 14 years of age or a dependent person; or

�� (B) The person causes the death by neglect or maltreatment, as defined in ORS 163.115.

�� (2) Manslaughter in the second degree is a Class B felony. [1971 c.743 �89; 1975 c.577 �3; 1997 c.850 �4; 1999 c.954 �1]

�� 163.130 [Repealed by 1971 c.743 �432]

�� 163.135 Extreme emotional disturbance as affirmative defense to murder in the second degree; notice of expert testimony; right of state to psychiatric or psychological examination. (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 regarding extreme emotional disturbance under this section unless the defendant gives notice of the defendant�s intent to do so.

�� (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 before trial if the court determines that there was just cause for failure to file the notice at the time of the defendant�s plea.

�� (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 discretion, determines that there was just cause for failure to file notice.

�� (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.

�� (5) As used in this section, �gender identity� has the meaning given that term in ORS 166.155. [1971 c.743 �90; 1977 c.235 �1; 1981 c.873 �7; 2003 c.127 �1; 2019 c.635 �19; 2021 c.84 �1]

�� 163.140 [Repealed by 1971 c.743 �432]

�� 163.145 Criminally negligent homicide. (1) A person commits the crime of criminally negligent homicide when, with criminal negligence, the person causes the death of another person.

�� (2) Criminally negligent homicide is a Class B felony. [1971 c.743 �91; 2003 c.815 �2]

�� 163.147 Crime category classification for manslaughter in the second degree and criminally negligent homicide. The Oregon Criminal Justice Commission shall classify manslaughter in the second degree as described in ORS 163.125 and criminally negligent homicide as described in ORS 163.145 as crime category 9 of the sentencing guidelines grid of the commission if:

�� (1) The manslaughter or criminally negligent homicide resulted from the operation of a motor vehicle; and

�� (2) The driver of the motor vehicle was driving while under the influence of intoxicants. [2003 c.815 �1]

�� Note: 163.147 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 163 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

�� 163.149 Aggravated vehicular homicide. (1) Criminal homicide constitutes aggravated vehicular homicide when it is committed with criminal negligence, recklessly or recklessly under circumstances manifesting extreme indifference to the value of human life by a person operating a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 and:

�� (a) The person has a previous conviction for any of the crimes described in subsection (2) of this section, or their statutory counterparts in any jurisdiction; and

�� (b) The victim�s death in the previous conviction was caused by the person driving a motor vehicle.

�� (2) The previous convictions to which subsection (1) of this section applies are:

�� (a) Manslaughter in the first degree under ORS 163.118;

�� (b) Manslaughter in the second degree under ORS 163.125; or

�� (c) Criminally negligent homicide under ORS 163.145.

�� (3) It is an affirmative defense to a prosecution under this section that the defendant was not under the influence of intoxicants at the time of the conduct that resulted in the previous conviction.

�� (4) Aggravated vehicular homicide is a Class A felony. [2007 c.867 �1]

�� Note: 163.149 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 163 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

�� 163.150 Sentencing for aggravated murder; proceedings; issues for jury. (1)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (3) of this section, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment, as described in ORS 163.105 (1)(c), life imprisonment without the possibility of release or parole, as described in ORS 163.105 (1)(b), or death. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. If a juror for any reason is unable to perform the function of a juror, the juror shall be dismissed from the sentencing proceeding. The court shall cause to be drawn the name of one of the alternate jurors, who shall then become a member of the jury for the sentencing proceeding notwithstanding the fact that the alternate juror did not deliberate on the issue of guilt. If the defendant has pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence relating to the personal characteristics of the victim or the impact of the crime on the victim�s family and any aggravating or mitigating evidence relevant to the issue in paragraph (b)(C) of this subsection; however, neither the state nor the defendant shall be allowed to introduce repetitive evidence that has previously been offered and received during the trial on the issue of guilt. The court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing. This paragraph shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Oregon. The state and the defendant or the counsel of the defendant shall be permitted to present arguments for or against a sentence of death and for or against a sentence of life imprisonment with or without the possibility of release or parole.

�� (b) Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:

�� (A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;

�� (B) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and

�� (C) Whether the defendant should receive a death sentence.

�� (c)(A) The court shall instruct the jury to consider, in determining the issues in paragraph (b) of this subsection, any mitigating circumstances offered in evidence, including but not limited to the defendant�s age, the extent and severity of the defendant�s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed.

�� (B) The court shall instruct the jury to answer the question in paragraph (b)(C) of this subsection �no� if, after considering any aggravating evidence and any mitigating evidence concerning any aspect of the defendant�s character or background, or any circumstances of the offense and any victim impact evidence as described in paragraph (a) of this subsection, one or more of the jurors believe that the defendant should not receive a death sentence.

�� (d) The state must prove each issue submitted under paragraph (b) of this subsection beyond a reasonable doubt, and the jury shall return a special verdict of �yes� or �no� on each issue considered.

�� (e) The court shall charge the jury that it may not answer any issue �yes,� under paragraph (b) of this subsection unless it agrees unanimously.

�� (f) If the jury returns an affirmative finding on each issue considered under paragraph (b) of this subsection, the trial judge shall sentence the defendant to death.

�� (2)(a) Upon the conclusion of the presentation of the evidence, the court shall also instruct the jury that if it reaches a negative finding on any issue under subsection (1)(b) of this section, the trial court shall sentence the defendant to life imprisonment without the possibility of release or parole, as described in ORS