§ 15.10 Defense of Extreme Emotional Disturbance and Mental Illness

LibraryCriminal Law in Oregon (OSBar) (2022 Ed.)

§ 15.10 DEFENSE OF EXTREME EMOTIONAL DISTURBANCE AND MENTAL ILLNESS

There is a defense to intentional murder that the murder was committed under the influence of "extreme emotional disturbance" (EED). ORS 163.115(1)(a); ORS 163.118(1)(b); ORS 163.135. This defense is described in chapter 19. EED is an affirmative defense to intentional murder, only, not aggravated murder or felony murder. It is not a defense that depends on the defendant's having a mental illness, and it is noteworthy that the defense is in ORS chapter 163 ("offenses against persons") rather than ORS chapter 161 ("general provisions").

ORS 163.135(1) provides as follows:

It is an affirmative defense to murder in the second degree for purposes of ORS 163.115 (1)(a) that the homicide was committed under the influence of extreme emotional disturbance if the disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act and if there is a reasonable explanation for the disturbance. The reasonableness of the explanation for the disturbance must be determined from the standpoint of an ordinary person in the actor's situation under the circumstances that the actor reasonably believed them to be. Extreme emotional disturbance does not constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.

The 2021 Legislature added a new provision limiting the applicability of the EED defense:

The discovery of, knowledge about or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression or sexual orientation, including
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