State v. Bates

[U]nder ORS 163.684, “the legislature intended a visual recording of sexually explicit conduct involving a child to be synonymous with “a visual recording that depicts a child in an act of sexually explicit conduct.”

Defendant appealed a conviction for first-degree encouraging child sexual abuse (ECSA), ORS 163.684. Defendant assigned error to the lower court in failing to enter a judgment of acquittal of his ECSA conviction. On appeal, Defendant argued that because the child wasn't engaged in or a participant of the acts, the video at issue wasn't “a visual recording of sexually explicit conduct involving a child” as the statute states. In response, the State argued that the text of the statute contained the word “involve” which included a child’s association, if any, with the recorded acts. The factfinder must determine what the legislative intent was in the statute by analyzing the text and the legislative history. The Court found that under ORS 163.684, “the legislature intended a visual recording of sexually explicit conduct involving a child to be synonymous with “a visual recording that depicts a child in an act of sexually explicit conduct.” Therefore, the child must have a direct part in the sexual acts, even if the child is not “directly and personally” doing one of the activities. Thus, the Court held that since the child did not participate or engage in the sexually explicit conduct, the video was not “a visual recording of sexually explicit conduct involving a child” for purposes of ORS 163.684. Reversed and remanded for resentencing; otherwise affirmed.