State v. Hansen

• Decision Date: 29 September 1987
• Citation: 743 P.2d 157,304 Or. 169
• Parties: , 42 Ed. Law Rep. 417 STATE of Oregon, Respondent on Review, v. Diane HANSEN, Petitioner on Review. TC 84 1128; CA A34714; SC S33537.
• Court: Oregon Supreme Court

Page 157

743 P.2d 157

304 Or. 169, 42 Ed. Law Rep. 417

STATE of Oregon, Respondent on Review, v. Diane HANSEN, Petitioner on Review.

TC 84 1128; CA A34714; SC S33537.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 7, 1987.

Decided Sept. 29, 1987.

Robert J. McCrea, Eugene, argued the cause and filed the petition for petitioner on review.

Terry Ann Leggert, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

LENT, Justice.

Defendant, a high school teacher, was indicted for sodomy in the third degree, ORS 163.385, which prohibits "deviate sexual intercourse" with a person "under 16 years of age." At trial the state introduced evidence that defendant had engaged in such intercourse with one of her students on December 4, 1983, the day before the student's 16th birthday. The jury found her guilty, and she was sentenced to a prison term of five years. The Court of Appeals affirmed. State v. Hansen, 82 Or.App. 178, 728 P.2d 538 (1986).

We allowed defendant's petition for review, which raises three issues: (1) Does the common-law method of calculating age, by which a person attains a given age on the day prior to that person's birthday, apply to ORS 163.385? (2) Is expert testimony concerning methods that a person who sexually abuses children will use "to get close to the victim" admissible? (3) Where the state does not introduce into evidence communications between a child and the child's psychotherapist concerning the child's relationship with a defendant accused of sexually abusing the child, are the communications protected against disclosure by the psychotherapist-patient privilege, OEC 504, notwithstanding ORS 418.775(1), which provides that the psychotherapist-patient privilege, among others, "shall not be a ground for excluding evidence regarding a child's abuse, or the cause thereof"? Because we answer the second and third questions in the negative, we reverse and remand for a new trial.

I.

Defendant contends that the circuit court should have granted her motion for judgment of acquittal because the student was, under the common law, 16 years of age on the day the intercourse allegedly occurred. In calculating the passage of time, the common law treated each day as an indivisible unit and excluded the initial day from the computation. Nelson v. Sandkamp, 227 Minn. 177, 34 N.W.2d 640, 642 (1948). This remains the method in Oregon for determining whether such things as filing deadlines have been met. See, e.g., Beardsley v. Hill, 219 Or. 440, 348 P.2d 58 (1959); ORS 174.120; ORCP 10. With respect to age, however, the common-law calculation included the day of birth. Nichols v. Ramsel, 2 Mod 280, 86.

Eng Rep 1072 (KB 1677); Herbert v. Turball, 1 Keble 509, 83 Eng Rep 1129 (KB 1663), discussed in Annot., 5 ALR2d 1143, 1145-46 (1949); see also Nelson v. Sandkamp, supra, 34 N.W.2d at 642; Commonwealth v. Howe, 35 Pa.Super. 554 (1908). The effect of this exception to the general rule was that a person reached a given age in years at the first moment of the day before the person's birthday. Thus, under the common-law method, the student, who was born on December 5, 1967, became 16 at the beginning of December 4, 1983, the day the intercourse was alleged to have taken place. If the common-law method applies, defendant was entitled to a judgment of acquittal.

The "common law of England" was adopted prior to statehood or official territorial status by Oregon's provisional government. Act of July 5, 1843, Art 12, reprinted in Harris, History of the Oregon Code, 1 Or L Rev 129, 135 (1922); Act of June 27, 1844, Art III, § 1, reprinted in id. at 138. The common law, in the sense of an evolving body of law, continues in force insofar as it is not in conflict with legislation or constitutional provisions. See Or.Const., Art. XVIII, § 7; Peery v. Fletcher, 93 Or. 43, 52-54, 182 P. 143 (1919). No Oregon statute has expressly abrogated the common-law method for calculating age, but the legislature has provided that ORS 163.385 is applicable to conduct with persons "under 16 years of age." Therefore, whether the student was 16 at the time the act was alleged to have taken place is more properly analyzed as a question of legislative intent. The common law is not irrelevant to that question, but it is also not dispositive. Cf. Commonwealth v. Howe, supra, (reasonable to assume that, in fixing age of consent at 16, the legislature intended to follow common-law method of calculation).

ORS 163.385 was enacted in 1971 as part of a general revision of the Oregon criminal laws that was proposed by the Oregon Criminal Law Revision Commission. Or. Laws 1971, ch. 743, § 112. ORS 163.385 was adapted in part from section 130.40 of the New York Revised Penal Law. Proposed Oregon Criminal Code 116, 118, § 112, Commentary (1970). A related section of the proposed code, section 105 (enacted as ORS 163.315), provided that a person "[u]nder 18 years of age" was incapable of consenting to a sexual act. The commentary to that section, which was also adapted from section 130 of the New York Revised Penal Law, stated, "A person is under 18 years of age if he has not reached his 18th birthday, that is, up to and including the day before his 18th birthday." Given that New York law was the source of section 105, the commentary may have been based on a then recent decision of New York's highest court, which held that the common-law method of calculating age was inapplicable to legislation defining the New York Family Court's jurisdiction over juveniles. People v. Stevenson, 17 N.Y.2d 682, 269 N.Y.S.2d 458, 216 N.E.2d 615 (1966), rev'g and adopting dissent in 23 A.D.2d 472, 262 N.Y.S.2d 238 (1965) (Christ, J., dissenting). This decision was thought to apply to the statute on which section 105 was based. See McKinney's Consolidated Laws of New York Annotated, Penal Law § 130.05, Practice Commentary at 452 (1975 ed).

Unofficial commentary to a separate, albeit related, provision of a code is a thin reed on which to base the interpretation of a statute. Nevertheless, we are convinced that the interpretation is correct because it accords both with the popular method for computing age and with the method by which the passage of time is computed in other areas of the law. See, e.g., Beardsley v. Hill, supra; ORS 174.120; ORCP 10. Moreover, so far as we are able to ascertain, no reported decision of any Oregon court has ever used the common-law method for calculating age. We think it extremely unlikely that the legislature had this method of calculation in mind when it enacted ORS 163.385. ¹

For these reasons, we hold that the student was "under 16 years of age" on December 4, 1983. The circuit court properly denied defendant's motion for judgment of acquittal.

II.

The student testified on direct examination by the state and on cross-examination that she had for several months initially denied having sexual relations with defendant. Because this testimony called into question the student's credibility, the state presented the expert testimony of a Detective Robson regarding his experiences investigating other child sexual abuse cases. Detective Robson testified over objection that it was normal for child victims of sexual abuse to deny that the abuse occurred because they felt guilty and embarrassed and, where they had an emotional tie to the abuser, because they wished to protect the abuser. On review, defendant does not challenge the admission of this testimony in general, but she does object to the following question and answer given in the course of the testimony:

"Q. [By the prosecutor] Now, do you find certain common factors when you work with both the victims and offenders in these non-family cases? Do you find certain factors or methods that an offender will use to get close to the victim?

" * * *

* * * "A. [By Detective Robson] Yes, there are certain techniques. It's usually what I term a 'grooming process.' Usually, there's an extensive amount of testing that goes on both physically and psychologically. There is usually a lot of gift giving, a lot of affection, praising, rewards, anything to make the individual more comfortable even to the extent of dealing with lots of people surrounding this particular person, just getting into a comfortable role; in other words, feeling comfortable and being close to an individual. Yes, they often establish some emotional dependency."

The precise basis of defendant's objection is not clear but appears to be that the expert testimony concerning the specific techniques that a child abuser "will use to get close to the victim" was not of assistance to the jury because any probative value the testimony might have had was outweighed by the danger of unfair prejudice to her. ² Other evidence presented by the state tended to show that defendant had done some of the things described by Detective Robson as "grooming."

OEC 702 provides:

"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."

In State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), this court explained that the admissibility of expert testimony must be evaluated in essentially the same manner as other evidence, with particular reference under OEC 401 to the testimony's relevance and under OEC 403 to the danger that the testimony might unfairly prejudice the opposing party. Id. at 409, 415-18, 687 P.2d 751.

The state, relying on State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983), contends that the testimony was admissible as part of its effort to explain the student's initial denial that she had sexual relations with defendant. Middleton involved the rape of a 14-year-old child by her father. The child reported the rape to several persons, later denied that the rape...