The Oregon Court of Appeals held on June 17, 2015 that a true life sentence for “an incorrigible masturbator” was an unconstitutionally disproportionate punishment – a decision subsequently upheld by the state Supreme Court.

Under ORS 137.719(1), certain recidivist sex offenders may be sentenced to a presumptive life sentence without the possibility of parole when convicted of a third felony sex crime. Public indecency is a felony sex crime if the offender has a prior conviction for public indecency or another sexual offense.

In July 2006, Dennis James Davidson’s grandmother caught him masturbating while looking out the window at the neighboring home of a young woman, identified only as “A.” That same month, another neighbor observed Davidson, 39, masturbating on the porch of A’s residence. When Davidson saw the neighbor, he thrust his hips in her direction and yelled “You want some of this?”

After the police arrived Davidson denied the neighbor’s accusations, telling the officers that he knew A, had just been in her home where they had masturbated together, and the neighbor saw him zipping up his pants as he left after the encounter.

During a search of Davidson’s backpack, police found a bottle of KY liquid lubricant, a knee-high nylon stocking, methamphetamine and marijuana paraphernalia, and a letter referring to A that said “I’ve got a crush on you so bad it’s frustrating.”

A, who did not know Davidson, was alarmed that he had correctly described her bedroom and sheets to the police. She obtained a stalking protective order against Davidson, who was convicted of public indecency and sentenced to 18 months’ probation.

On September 1, 2006, elementary school students reported that Davidson was watching them play. Three students, the school principal, custodian and kitchen manager observed him masturbating on the school playground, about 200 feet from where children were playing. He was again convicted of public indecency, and sentenced to 28 months in prison.

Davidson was released on August 21, 2008 and subsequently jailed for 30 days for probation violations committed between September 1 and November 6, 2008, by admittedly walking by A’s residence and “glancing” at her house.

He visited a pornography store in a strip mall on December 16, 2008, and masturbated in the porn shop while watching X-rated videos. When he left the store, Davidson approached three women and a two-year old child in the parking lot. He exposed himself and started masturbating. One woman said that when he looked at her, he began stroking his penis with both hands.

Davidson claimed he “was trying to find a date” and believed that seeing him masturbate would make the women “hot” and want to date him. He was again convicted of public indecency and sentenced to 28 months in prison. He also was charged with public indecency for an earlier incident inside the porn shop with a woman whom he claimed was a prostitute, though those charges were dismissed.

Even after a prison guard caught Davidson masturbating, he was released on April 13, 2011. Four days later a woman who was picnicking in a park with her mother and her three girls, ages 3, 10 and 12, reported that Davidson was standing behind a tree watching them while masturbating. She called 911. When police arrived they found Davidson standing outside the park fence, looking into the park and masturbating.

He was arrested on two counts of public indecency. The day he was booked into the jail, a guard caught him masturbating after a nurse came to see him. The guard asked Davidson why he was masturbating and he said it was because “I saw the nurse.” He asked when she would be back to see him because he liked females.

Davidson appeared to have cognitive problems that prevented him from appreciating the illegality and harmful effects of his public masturbation; he did not comprehend or respect the restrictions placed on him as a result of his misbehavior. Convicted of both public indecency charges, he was sentenced to two consecutive terms of life imprisonment without the possibility of parole.

The Court of Appeals reversed, holding that Davidson’s sentence was unconstitutionally disproportionate under the circumstances of his case. “Had defendant, instead of masturbating, separately approached several adult women in public and groped their breasts or genitals, he would be subject to a less severe penalty than for four convictions of public indecency,” the Court explained. “Reasonable people would agree that serial groping of that nature is at least as harmful as serial public indecency, and the disparity of punishments for the combinations of offenses supports a conclusion of disproportionality.”

“Bluntly, defendant has demonstrated the following pattern: masturbate in public, get locked up (and continue to masturbate in front of others), get released, and – within days – masturbate in public again,” the appellate court added. “Defendant is not remorseful; in fact, it seems that he may not even understand – despite having been convicted several times – that public masturbation is illegal. Given that pattern and state of mind, it is reasonable to expect that, if defendant is released he will reoffend. As his lawyer puts it, defendant is ‘an incorrigible masturbator.’”

Ultimately, the Court of Appeals held that “a comparison of the severity of the penalty imposed with the gravity of the offense” Davidson committed “suggests that defendant’s true life sentence is disproportionate to his recidivist conduct.” Yet the Court said it was not suggesting “that no offender who simply repeats the same sexual offense could be constitutionally subjected to a true life sentence. For example, far at the other end of the range, a true life sentence for a multiple rapist would likely be constitutional.” See: State v. Davidson, 271 Or. App. 719, 353 P.3d 2 (Or. Ct. App. 2015).

Davidson appealed his convictions while the state appealed the determination that his life sentences were disproportionate. The Oregon Supreme Court accepted review, affirming the appellate court’s decision on September 22, 2016. “[W]here, as here, a criminal defendant – even an incorrigible one – has a criminal history that includes no offenses more serious than public indecency (and no other misconduct that otherwise supports a conclusion that he poses a significant physical danger to society), a sentence of life imprisonment without the possibility of parole for public indecency is unconstitutionally disproportionate,” the Court wrote. Davidson’s convictions were affirmed and the case remanded for resentencing. See: State v. Davidson, 360 Ore. 370 (Or. 2016).

Sadly, this case reflects the criminalization of mental illness in the United States, where the only “treatment” for people with mental health problems that result in criminal behavior is incarceration. As a result, more mentally ill people are held in prisons and jails than in mental health facilities in the U.S. [See, e.g., PLN, June 2016, p.14]. 

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