Excerpted from Criminal Law (OSB Legal Pubs 2013), chapter 15 Mental Illness and Incapacity.
By Harris Matarazzo, sole practitioner.
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§ 15.13-3(g) Extremely Dangerous Person with Mental Illness
§ 15.13-3(g)(1) In General
The 2013 Legislature enacted Senate Bill 421, which created a new classification of individual subject to a civil-commitment proceeding: “extremely dangerous person with mental illness.” ORS 426.701–426.702. See Or Laws 2013, ch 715. Although the new law appears in ORS chapter 426 along with other provisions relating to civil commitments, the underlying basis for this proceeding is previously adjudicated criminal conduct, or pending allegations of such activity. This could include a situation in which a person was found to lack the capacity to go to trial. Persons committed by the court pursuant to this law are subject to the jurisdiction of the Psychiatric Security Review Board (PSRB), the same agency responsible for overseeing persons found “guilty except for insanity” under ORS 161.295. See ORS 426.701(3).
Comment: As such, this legislation combines elements of both criminal law and civil law and, although sharing some procedural features, should not be confused with other civil commitments.
The discussion in § 15.13-3(g)(2) to § 15.13-3(g)(10) highlights the differences between Oregon’s longstanding bases for civil commitment and a commitment initiated on the basis of “extreme danger.” Otherwise, the procedures remain the same.
§ 15.13-3(g)(2) Who May Be Committed as an Extremely Dangerous Person with Mental Illness
A person is subject to commitment as an extremely dangerous person with mental illness if:
(1) The person is “extremely dangerous,” ORS 426.701(3)(a)(A);
(2) The person is at least 18 years old, ORS 426.701(1)(a)(A);
(3) The person has a “mental disorder that is resistant to treatment,” ORS 426.701(3)(a)(B);
(4) Because of that mental disorder, the person committed one of the following acts described in ORS 426.701(3)(a)(C):
(a) “Caused the death of another person,” ORS 426.701(3)(a)(C)(i);
(b) “Caused serious physical injury to another person by means of a dangerous weapon,” ORS 426.701(3)(a)(C)(ii);
(c) “Caused physical injury to another person by means of a firearm as defined in ORS 166.210 or an explosive as defined in ORS 164.055,” ORS 426.701(3)(a)(C)(iii);
(d) “Engaged in oral-genital contact with a child under 14 years of age,” ORS 426.701(3)(a)(C)(iv);
(e) “Forcibly compelled sexual intercourse, oral-genital contact or the penetration of another person’s anus or vagina,” ORS 426.701(3)(a)(C)(v); or
(f) “Caused a fire or explosion that damaged the protected property of another, as those terms are defined in ORS 164.305, or placed another person in danger of physical injury, and the fire or explosion was not the incidental result of normal and usual daily activities,” ORS 426.701(3)(a)(C)(vi);
(5) The person is “exhibiting symptoms or behaviors of a mental disorder substantially similar to those that preceded the [specific criminal] act,” ORS 426.701(1)(a)(B); and
(6) Because of the mental disorder, the person (a) “[p]resents a serious danger to the safety of others by reason of an extreme risk that the person will inflict grave or potential lethal physical injury on other persons,” and (b) “[u]nless committed, will continue to represent an extreme risk to the safety of other persons in the foreseeable future,” ORS 426.701(1)(a)(C).
The statute does not define the term mental disorder, but the statute provides that the mental disorder must be “resistant to treatment.” ORS 426.701(3)(a)(B). Furthermore, the statute provides that a mental disorder does not include a disorder “manifested solely by repeated criminal or otherwise antisocial conduct” or a disorder “constituting solely a personality disorder.” ORS 426.701(1)(b).
Qualifying conditions are deemed to be “resistant to treatment” if the person “continues to be significantly impaired in the person’s ability to make competent decisions and to be aware of and control extremely dangerous behavior” after (1) “receiving care from a licensed psychiatrist and exhausting all reasonable psychiatric treatment” or (2) “refusing psychiatric treatment.” ORS 426.701(1)(c).