You can learn more about SB 1070 on the Oregon Legislature website here.

We know that, in Oregon, more than one third of women have experienced domestic violence; and numerous studies in the U.S., dating as far back as the 1980’s, observed high rates of victimization that link violence in women’s lives to their entry into the criminal justice system as defendants.

In a 2017-2018 survey of more than 140 women incarcerated in Oregon revealed the following:

• 65% of the women in a relationship at the time of arrest reported experiencing abuse in their relationship.

• 44% of the women in a relationship at the time of arrest said the relationship contributed to their conviction.

Defendants who would be eligible for sentencing considerations under this bill have largely been invisible. They are not recognized by the criminal legal system and therefore there is no record of the number or frequency of survivors who are convicted for crimes committed out of their abusive relationships.

SB 1070 recognizes the same “family or household relationships” currently used by prosecutors to charge and convict domestic violence offenses: spouses; former spouses; adult persons related by blood or marriage; persons cohabiting with each other; persons who have cohabited with each other or who have been involved in a sexually intimate relationship. See ORS 135.230.

SB 1070 requires the defendant to show that they have been subjected to “domestic abuse,” as defined by the United Nations. In SB 1070, “domestic abuse” means a pattern of behavior in a relationship by which one person in the relationship gains or maintains power and control over the other person, consisting of physical, sexual, emotional, economic or psychological actions or threats of action that influence another person, including but not limited to actions or threats of action that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure, or wound the other person.

In deciding whether to order a lesser sentence, judges will look at the totality of the circumstances: whether the defendant was subjected to domestic abuse, as defined in SB 1070 and as defined by the United Nations (see question above); and whether the abuse was a contributing factor to the crime; and whether the mandatory or presumptive sentence is unduly harsh in light of the circumstances of the crime, the circumstances of the defendant and the abuse the defendant suffered. SB 1070 does not require judges to order a lesser sentence.

Self-defense is a type of defense to a crime. Defenses only apply when the court is determining whether someone is guilty and should be convicted of a crime, not at sentencing when the court is ordering a defendant’s punishment.

The circumstances and experiences of domestic violence survivor-defendants don’t fit neatly into the available defenses, like self-defense, duress, etc. For example, self-defense that occurs within the context of the cycle of abuse that so many survivors of violence experience will not fit the legal definition of self-defense and therefore not protect survivors from unjust treatment in the criminal legal system. Another limitation is that defenses almost always have to be raised at trial. (95% of cases are resolved by plea agreements.) Because of the charging practices and the power of the prosecutor, many defendants will not go to trial because by doing so they risk receiving much harsher penalties if they are found guilty, than if they accept a plea offer from the prosecutor.

SB 1070 addresses the sentencing phase of the criminal proceedings, after the defendant has been found guilty at trial or pled guilty to crimes. Defenses, like self-defense, do not apply at sentencing.

Judges can only order a lesser sentence in extremely limited circumstances, when we’re talking about crimes that involve mandatory minimum sentences.

In 1994, Oregon passed Measure 11, which imposes mandatory minimum sentences for about 25 different crimes. In the vast majority of cases, once someone is convicted under Measure 11, whether because they pled guilty or they’re found guilty at trial, the judge has no discretion whatsoever to give them a lesser sentence. The judge is required by law to give them the mandatory minimum sentence.

We have spoken to many incarcerated survivors of domestic violence over the past ten years, to defense attorneys, investigators, and to former prosecutors. Based on their reports, we conclude that it is exceedingly rare that a defendant’s domestic violence victimization is considered by prosecutors in plea negotiations. More.

SB 1070 requires the defendant to show that they have been subjected to “domestic abuse,” as defined by the United Nations. In SB 1070, “domestic abuse” means a pattern of behavior in a relationship by which one person in the relationship gains or maintains power and control over the other person, consisting of physical, sexual, emotional, economic or psychological actions or threats of action that influence another person, including but not limited to actions or threats of action that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure, or wound the other person.

Currently, Oregon law defines “domestic violence” as “abuse between family or household members” (ORS 135.230(3)) and “abuse” as a singular act of causing physical injury, placing someone in fear of physical injury, or committing sexual abuse in the first degree (see ORS 135.230(1)). As you can see, “domestic abuse” as defined in SB 1070 is a more accurate definition of domestic violence and therefore makes it difficult for a defendant to falsely claim they are a victim of domestic abuse and to be eligible for a sentence reduction under SB 1070.

Furthermore, in deciding whether to order a lesser sentence, judges consider more than the claims of domestic abuse. They must consider the totality of the circumstances: whether the defendant was subjected to domestic abuse, as defined in SB 1070 and as defined by the United Nations; and whether the abuse was a contributing factor to the crime; and whether the mandatory or presumptive sentence is unduly harsh in light of the circumstances of the crime, the circumstances of the defendant and the abuse the defendant suffered.