ID Theft, Court of Appeals and Merger
Today, the COA issued an opinion in State v. Mullen which at least partially addressed who is the victim of a crime of Identity Theft. (I say partially because the COA declined — on the grounds that it was unnecessary — to decide whether there were other potential victims of identity theft, e.g., the business that might be defrauded.)
The Mullen court held:
Nonetheless, we need not determine which parties actually suffer economic harm that results from a completed act of deception or fraud under various scenarios of identity theft because we conclude that the victims of identity theft include persons who suffer a risk of loss from the exposure of their identification to misuse.
While I have been a long-standing proponent of the opposite conclusion, it’s not as though this holding comes as a surprise. That said, the opinion seemed to elide a number of problems that undermine that holding. What caught my attention first is the sentence which follows the one I just quoted.
In all cases of identity theft, the “[ ]other person” is disadvantaged because their personal identification could be used by another person for deceptive or fraudulent ends. It is immaterial whether that risk is realized or whether economic or reputational injury actually occurs. [Emphasis added.]
I can only assume this is a problem of poor editing or writing rather than conscious intent, because it is simply false. As the court noted earlier in its opinion, the “other person” can be imaginary, and it is both impossible and absurd to say that an imaginary person can be disadvantaged in any way. Yet that is what that sentence claims, in holding that in “all cases” of identity theft the named person is disadvantaged.
That said, if you look at the opinion as a whole, I do think the court intended to exclude imaginary people from the class of victims, even if that sentence says otherwise. (If I’m wrong, if the court is finding that all identify thefts involve disadvantaging the named person, even when the named person is imaginary, I would not be merely disappointed. I’d be disheartened.)
In support of my opinion that the court intended to limit its holding to real people are the following two quotes. Earlier, the opinion quoted the state’s position, which I quote in part.
The state responds that people whose identities are misappropriated often suffer substantial economic harm and that we can therefore infer that ORS 165.800 was enacted to protect not only “parties being deceived or defrauded,” but also “the persons, if real, whose identification information is stolen.”
And in noting its disagreement with the defendant, the court stated:
Nor do we agree that real people who have their identities misappropriated cannot be victims under the statute merely because “another person” may, in some instances, be an imaginary person. [Emphasis added.]
So, read in its entirety, that one unfortunate sentence notwithstanding, it does seem that the court is limiting its holding to real people. This would require, I submit, the state proving that the person named is real, and arguably proving that to a jury, before they successfully circumvent merger. (I also think they have to prove the person was alive at the time the crime was committed but I’ll discuss that in more detail at another time.)
I’d like to address two additional problems with the court’s holding, assuming the court did in fact intend to restrict the victims to real people. The first is simply this: the ruling is so broad, the victim might be a conspirator to the crime. Let’s say I give you my credit card, I say, “go ring up as much stuff as you can and I’ll report it stolen tomorrow.” One prosecutor I know has in fact charged cases like this. Here, the person named on the credit card is real. The user of the credit card is doing it to defraud. But under the Court’s reading, the victim and the co-defendant are one and the same. You can easily get around this problem only by saying that the person who is to be defrauded is the victim. But this hypothetical — which, again, has occurred in real life — belies the claim that all cases of identity theft injures the [real] person named.
The second, and more overarching, problem is this: the court is creating a “class of victims” that are not named in the statute. The court rightly quotes St v Moncada for the idea that in determining whether there is a victim, we must first decide the class of victims intended by the legislature and then seeing if the person at issue falls into that class.
Nowhere in the statute did the legislature create a class of only real people. The only class named in the statute would be the “other person,” who is defined as real or imaginary. What the court is doing is taking the only identifiable class of persons, recognizing (I think) that an imaginary person can’t be a part of that class, and thus creating a sub-class of only real people.
I don’t think the courts can create sub-classes in this manner, and let me provide an example I’ve used before to highlight why. In Oregon, the age of consent to sexual activity is 18. In Washington, it’s 16. Let’s say a Vancouver resident takes pictures in WA of his 17 year old girlfriend on his cell phone, and he brings them into Portland. He is charged with the crime of Encouraging Child Sexual Abuse. But of course, the pictures, when taken in Vancouver, weren’t pictures of child abuse. They were perfectly legal. You could argue that it doesn’t make sense to say the victim was only a victim when the defendant crossed into Oregon with his cell phone in his pocket. To address that absurdity, could an Oregon Court create a subclass of victims as follows: the victims of Encouraging Child Sexual Abuse are the persons whose photos are taken, if they are under 18, unless the photos were taken in Washington State, in which case the victim has to have been under 16.
It’s entirely possible the legislature could create a law like that. It seems to me beyond the court’s ability to create such distinctions — a sub-class of victims — in order to avoid an absurdity that would exist if you labeled as a victim the only class of people identified by the statute.
All that said, pity the poor prosecutor. Keep in mind the recent OSC opinion on victim’s rights. Assume the following scenario, which you may have seen a variation of in the news: an ID thief has a CD with the names and addresses of five hundred people, all obtained illegally from DMV. The prosecutor is merciful: she charges a mere 100 counts of ID Theft, naming only the first 100 alphabetically.
Normally, not a single person named as a victim of the Identity Theft would appear at trial. In fact, it’s quite common that such persons don’t appear at trial, and not just because they may be imaginary or dead. They just aren’t essential for an ID theft prosecution, more times than not.
But if the person whose identity is stolen is a “victim,” as the court has now held, then each of those 100 names from DMV records must be notified of “‘[the] right to be informed of [the foregoing rights] as soon as practicable.” Oregon Constitution, section 42(1)(g). The rights to which they are entitled to be notified include the right to be notified of any significant stage in the proceedings.
Let’s see how often prosecutors follow the requirements of the constitution and notify every person named as a “victim” in every charge of identity theft. Or does today’s holding only apply if it makes like harder for the defendant?