This is the email I wrote to my district attorney, regarding his office’s refusal to file assault charges against my attacker
(But see updates at end of story)
[Some details redacted to protect privacy of D.A. staff, and to make it harder for the assailant to find this story]
To: District Attorney Rod Underhill
Re: Case # [redacted in public version]
Dear Sir,
I have to begin by apologizing for my persistence; I’ve already contacted your office a couple of times by phone and spoken to a Deputy District attorney. However I have to say that I remain completely unsatisfied. On Saturday September 1st I was (in the common use of the word) assaulted physically in an extremely violent manner, in broad daylight in front of my family, including my two minor daughters (ages 4 and 9). My attacker (whom we did not know) was a large and powerful man who charged at me without warning, gouged my eye, kicked and punched at me while I desperately tried to defend myself and my family. It was a terrifying experience, completely unprovoked, and from the ferocity of the attack I know to a moral certainty that my attacker was doing his very best to cause me grievous physical harm. Thanks to good luck and my self defense training I was able to bring the attacker under control while my wife contacted the police, who came and arrested the assailant. I had some cuts to my face and bruising around my eye but otherwise was not badly hurt. I later needed to get a tetanus shot and treatment for an eye infection where he had gouged me.
The Portland police were very professional and helpful; they gathered statements from us and other witnesses, photographed my bloody face, and informed me that the attacker was already on probation for assault on a police officer. They also provided me with a case number and the number of your office. Because it was the beginning of a long weekend I had to wait until Tuesday to call your intake line and press charges, which of course I did. Your office shared with me the sheriff’s website with booking information for my attacker; here it is: [redacted in public version]
I took note of the booking charge Assault IV (Misdemeanor) and had a look on the internet; this is what I found: https://www.oregonlaws.org/ors/163.160. I took satisfaction in noting that an assault committed in the immediate presence of the victim’s minor children ought to make the assault a felony. I felt reassured and proud to live in a jurisdiction which recognized the additional gravity of committing such a crime in front of my children.
Nothing could have prepared me for what happened the next day. When I looked at the sheriff’s website again in the morning I saw that my attacker had been released. As soon as I could I called the your office to express my shock and request an explanation as to why he had not been held and charged with Felony Assault IV. Again I spoke with a very kind and helpful staff member who took down my information and assured me that I would get a call back that afternoon. At about 2PM I received a call back from a man who introduced himself as [Mr. C. — full name redacted in public version], Senior Deputy Assistant District Attorney. [Mr. C.] was extremely polite and professional, but he told me:
- I should have no expectations that your office or the court would treat this as a serious matter.
- The statue I read had no bearing on this case as my injuries were not what a court would consider serious.
- “Injury” as referenced in the statute had to be a major injury like a broken bone, stitches, or something causing severe lasting pain and/or temporary disability.
- Thus, the office would prosecute this matter as two incidents of harassment, which are class B misdemeanors. He indicated that this was really the best he could do.
- The probationary period from the previous conviction (assault on a police officer) would expire before this case got to trial.
- Thus, there would be no significant punishment for my attacker, nothing beyond another period of probation (probably brief).
- There would be no protective order for me or my family (unless and until one of us was attacked by him again).
I have no issue with [Mr. C.] and I accept his expertise in this matter. From what he told me it seems as if Oregon really has a completely crazy standard for assault: If someone attacks you, attempting in earnest to inflict serious bodily harm to you but they succeed only in inflicting minor bodily harm, the State of Oregon does not consider that an assault. The most the courts will do is convict your attacker of harassment or some similarly insignificant crime. Frankly this causes me to question the accuracy of our city’s famously low rates of violent crime: if every case of “harassment” could in fact be an assault in which the victim’s injuries fall just short of requiring hospital care then who’s to know what the real state of affairs is?
I am not a lawyer and this is not a deposition but I would like to have a few questions answered:
Question 1:
Regarding 163.160 of Oregon’s Revised Statutes:
The first part currently reads:
(1) A person commits the crime of assault in the fourth degree if the person:
(a) Intentionally, knowingly or recklessly causes physical injury to another;
The term “injury” is not defined in this statute. [Mr. C.] said the standard is that it must be a major injury as described above. Is this defined in a different statute, by court precedent, or is it simply your departmental policy? Or is it something else? Whichever it is, can you please refer me to the relevant material?
Question 2:
I think most people think of assault as a violent crime and harassment as non-violent personal crime. But Oregon seems to have a much higher bar than normal for assault. So if “harassment” crimes includes non-major-injury assaults, just how common is my situation? Are there other places I should be aware of as someone who wants to understand patterns of violent crime that are hidden in this way?
Question 3:
Is what [Mr. C.] told me really a universal legal definition of “injury” (and therefore of what constitutes assault) in the state of Oregon? It is very hard for me to believe that, for example, someone who punches or cuts a police officer would not be charged with assault on the police officer, regardless of how minor the officer’s injuries were. And yet statue ORS 163.208 (covering Assault on a Public Safety Officer) uses exactly the same language as 163.160.
Thanks in advance for your consideration. I would appreciate a response directly from District Attorney Rod Underhill, whom I voted for in the past and hope to again in the future.
Regards,
Ben Drasin
[Address redacted in public version]
Epilogue: after some back-and-forth, the DA’s office has indicated that they will attempt to prosecute the case as an Assault IV, based on the medical treatment I required for my eye. Because of the presence of my minor children this becomes a felony which could result in a jail or prison sentence although it’s not a sure thing. Will update with more information as it becomes available.
Update 10/12
Yesterday I testified to a grand jury, and today I learned that they voted to prosecute the case as felony assault, plus misdemeanor charges for harassment and disorderly conduct. As you can imagine I’m broadly pleased. Will update again when there is more news.
Update 3/25/2019
After multiple postponements (and, I am sure negotiation), the attacker agreed to plead guilty to assault and accept a sentence of one year incarceration. At this point he has already been in jail for four months so likely they will be out in a few months (barring bad behavior, which would not surprise me), after which they will serve two years of supervised probation. The court also imposed a no-contact order to protect me and my family for the duration of the probation.
Obviously I am basically satisfied with the resolution although it took some time to get there.
