K. H. v. Mitchell

¶1dissenting.

¶2I reluctantly dissent from the majority’s decision in this case. I do so reluctantly because defendant’s reprehensible conduct is conduct against which plaintiff is entitled to be protected. Unfortunately, however, plaintiff apparently did not take the step required under Oregon law to make defendant’s conduct criminal, and the police apparently did not advise plaintiff of that step. Furthermore, although I believe that the Oregon stalking law could be amended to cover defendant’s conduct without violating the state or federal constitutions, the current law, as we have construed it, does not reach defendant’s conduct. Consequently, the trial court erred by entering a stalking protective order under it.

¶3Before I joined the court, I assisted the legislature in drafting ORS 166.090, the telephone harassment statute. That statute makes it a Class B misdemeanor to harass or annoy a person intentionally by causing that person’s telephone to ring when the caller has no communicative purpose or by causing the person’s telephone to ring “knowing that the caller has been forbidden from doing so by a person exercising lawful authority over the receiving telephone.” ORS 166.090(l)(b). The statute replaced provisions of the harassment statute that were directed at obscene telephone calls. Compare id. with former ORS 166.065(l)(e) (1985). The legislature made the change because of a concern that the proscription in the harassment statute against obscene telephone calls violated the guarantee of free speech in Article I, section 8, of the Oregon Constitution. In other words, the legislature adopted ORS 166.090 to address the very conduct in which defendant engaged.'

¶4However, for the statute to apply to the statements that defendant made over the telephone to plaintiff, someone who had authority over the telephone that defendant called had to tell defendant that he was forbidden to call it. See ORS 166.090(l)(b). Apparently, no one told defendant that. Had someone done that, defendant could have been prosecuted for *271violating the statute each time that he called plaintiff after having been forbidden to do so. Although the issue is not before us, I believe that the telephone harassment statute is constitutional under Article I, section 8, and under the First Amendment to the United States Constitution. I certainly believed that to be true at the time that I helped draft the statute, because the task that we undertook for the legislature was to draft a constitutional statute to replace the arguably unconstitutional obscene-telephone-call component of the harassment statute. Although criminal prosecution need not be the only way to resolve a problem, it certainly is one way that the legislature intended that conduct such as defendant’s be addressed. It is unfortunate that it apparently could not be used under the facts of this case.

¶5The stalking statutes represent a different approach to certain kinds of alarming or coercive conduct. In addition to imposing criminal penalties for engaging in the conduct that they prohibit, the stalking statutes give people affected by the conduct the ability to obtain a court order that prohibits violators from contacting them. See ORS ORS 163.732, ORS 163.738, ORS 163.750.

¶6However, because the stalking statutes expressly restrict communication, they had to be written in a way that complies with the proscription in Article I, section 8, against the enactment of certain laws that restrain or restrict expression. So far, both we and the Supreme Court have held that the current version of the statutes complies with Article I, section 8, and with the First Amendment. In doing so, however, we have construed the statutes in a way that excludes defendant’s conduct from the conduct that they cover. We held in State v. Rangel, 146 Or App 571, 577-78, 934 P2d 1128 (1997), that, to the extent that the stalking statutes expressly restrict communication, they cover only communication that constitutes a threat or its equivalent. Id.

¶7The Supreme Court agreed with our interpretation of the stalking statutes. State v. Rangel, 328 Or 294, 302-03, 977 P2d 379 (1999). As did we, it also held that State v. Moyle, 299 Or 691, 703-05, 705 P2d 740 (1985),

“explains what behavior constitutes a proscribable ‘threat’ in this context. … According to Moyle, a proscribable *272threat is a communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.”

¶8Rangel, 328 Or at 303 (citing Moyle, 299 Or at 703-05).

¶9Given that understanding of the reach of the stalking statutes, it is evident that defendant did not engage in conduct that could result in the entry of a stalking protective order against him. The first series of telephone calls about which plaintiff complained occurred on March 1,1999. In the two calls on that day in which defendant spoke, he disguised his voice and twice said that he wanted to engage in some form of sexual activity with plaintiff. Neither of those statements could be understood to constitute an unequivocal threat to go to plaintiffs house within a few minutes of the calls and sexually assault her. Only if the calls had conveyed that or an equivalent idea could they constitute a threat of the kind proscribed by the stalking statutes.1

¶10The next, and last, series of calls occurred on May 12,1999. In the first call in that series, defendant again used a disguised voice and said, “I want some of that little pussy, I’ll be right over!” Plaintiff hung up the telephone, and defendant promptly called back. In the second call, the parties engaged in a colloquy in which they asked each other to identify themselves, and defendant explained that he wanted to get an answer to his prior call. The only way to interpret that exchange is that defendant wanted to know if plaintiff had any desire to engage in sexual activity with him.2 Plaintiff *273again hung up, and when defendant called a third time, plaintiff hung up and then took the telephone off the hook to prevent defendant from calling again.3

¶11I think that the three calls that defendant made in quick succession on May 12 should be considered as a whole, given their timing and content. However, even if each call were analyzed separately, it is evident that they do not constitute repeated unequivocal threats by defendant to go to plaintiffs house promptly after making the calls and commit a sexual assault. The first call comes closest to such a threat, in that defendant said that he “wanted” to engage in sexual activity with plaintiff and would be right over. There is no reason to imagine that plaintiff had any desire or intention to engage in sexual activity with defendant, so, if there were to be such activity, it would be nonconsensual and, hence, criminal. However, the words, themselves, do not convey an unequivocal threat to commit a sexual assault.4

¶12*274In the second call, defendant included the statement in which he said that he wanted an answer to his earlier call in which, before plaintiff hung up the telephone, defendant had said that he wanted to engage in sex with plaintiff and would be right over. The second call indicates a desire by defendant to know whether plaintiff had any interest in his proposed course of conduct. That statement undercuts any suggestion that defendant’s prior call constituted a threat to commit a sexual assault and precludes an understanding that the second call conveyed such a threat. Nothing suggests that the third call in the series of calls for that day added anything further to the exchange. Consequently, at most, only one of the calls that defendant made on May 12 could be understood to constitute a threat by defendant to go promptly to plaintiffs house and sexually assault her. Because the stalking statute requires that a defendant engage in repeated violations of it in order to be subject to a stalking protective order, the single call on May 12 in which defendant may have made a proscribable threat is insufficient to establish a basis on which the court could enter a stalking protective order against defendant. Consequently, I must respectfully dissent from the majority’s contrary conclusion.

¶13I should add, however, that, I am confident that the stalking statutes could be amended to cover defendant’s telephone calls to plaintiff. As noted earlier, the legislature enacted ORS 166.090 to address calls of the kind that defendant made to plaintiff. Because the legislature can make it a crime to make those calls, I believe that it could incorporate that conduct into the stalking statutes. The problem is that the legislature has not yet done that.