STATE v. FLEMING (1999)

In these consolidated criminal cases, defendants were charged with possession of a depiction of sexual conduct involving a child, in violation of former ORS 163.672 (1993), repealed by Or.Laws 1995, ch. 768, § 16.¹  Defendants demurred to the indictments on the ground that former ORS 163.672 violated the free speech guarantees of Article I, section 8, of the Oregon Constitution.   The trial court granted the demurrers.   The state appeals, arguing that the Supreme Court's decision in State v. Stoneman, 323 Or. 536, 920 P.2d 535 (1996), published some time after the trial court's decisions, requires reversal.   We agree with the state and reverse and remand.

At issue in Stoneman was the constitutionality of former ORS 163.680 (1987), repealed by Or.Laws 1995, ch. 768, § 1,² which made it unlawful for any person

“to pay or give anything of value to observe sexually explicit conduct by a child known by the person to be under 18 years of age, or to pay or give anything of value to obtain or view a photograph, motion picture, videotape or other visual reproduction of sexually explicit conduct by a child under 18 years of age.”

Applying the analysis required by State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), and its progeny, the court first examined whether the challenged statute targeted the substance of any communication, as opposed to the harmful effects of communication.   The court concluded that former ORS 163.680,

“prohibited the purchase of certain communicative materials, not in terms of their communicative substance, but in terms of their status as the products of acts that necessarily have harmed the child participants.”

Stoneman, 323 Or. at 548, 920 P.2d 535 (emphasis in original).   The court cited as the basis for that conclusion the language of the statute itself, its requirement that the prohibited visual reproductions depict actual children engaged in sexually explicit  conduct, and several portions of statutory context.  Id. at 546-48, 920 P.2d 535.   Among the contextual references that the court found pertinent was former ORS 163.683 (1987), which established an affirmative defense to prosecution under former ORS 163.680 if a defendant purchased a visual reproduction otherwise prohibited under former ORS 163.680 and the reproduction is not the product of an act of actual sexual abuse of a child.  Stoneman, 323 Or. at 546-47, 920 P.2d 535.   The court concluded that, because former ORS 163.680 targets only the effects of speech, it did not directly violate Article I, section 8.   Stoneman, 323 Or. at 550, 920 P.2d 535.

At issue in this case is the constitutionality of former ORS 163.672, which provided:

“(1) A person commits the crime of possession of a depiction of sexual conduct involving a child if the person knowingly possesses or controls any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child.”

The state argues that Stoneman controls the constitutionality of former ORS 163.672.   Defendants contend that Stoneman actually compels the conclusion that former ORS 163.672 is unconstitutional.   According to defendants, the linchpin for Stoneman was the applicability of the affirmative defense described in former ORS 163.683, which demonstrated that the legislature intended to target only the effects of speech.   Defendants contend that, because that affirmative defense does not apply to prosecution under former ORS 163.672, we must conclude that the statute targets speech and not its harmful effects.

We agree with the state.   Former ORS 163.672 targeted the possession of depictions of children engaged in sexually explicit conduct.   The statute parallels former ORS 163.680, which prohibited commerce in depictions of children engaged in sexually explicit conduct.   As to whether former ORS 163.672 targeted merely the harmful effects of speech, and not speech itself, it is materially indistinguishable from former ORS 163.680.   We reach that conclusion on the basis of the language of the statute itself, as did the Supreme Court with respect to former ORS 163.680 in Stoneman.   Stoneman, 323 Or. at 546, 920 P.2d 535.   It is true that the Stoneman opinion mentions  former ORS 163.683, the affirmative defense to former ORS 163.680, which does not apply to prosecutions under the statute at issue in this case.  Stoneman, 323 Or. at 547, 920 P.2d 535.   Nevertheless, the court's reference to the defense was in no way a necessary predicate of its analysis;  the court cited the statute as contextual support for what it stated that the text made clear.  Id. at 546-47, 920 P.2d 535.

We conclude that the trial court erred in granting defendants' demurrers.

Reversed and remanded.

FOOTNOTES

1.   All references to former ORS 163.680 are to the 1987 version.

2.   All references to former ORS 163.672 are to the 1993 version.

 LANDAU, P.J.