Prosecutors say Oregon's abuse law prevents them from protecting - KPTV - FOX 12

Prosecutors say Oregon's abuse law prevents them from protecting children

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Jacob Marbury after being injured. (Photo: Facebook / Joshua Marbury Jacob Marbury after being injured. (Photo: Facebook / Joshua Marbury
Jacob Marbury (Source: KPTV) Jacob Marbury (Source: KPTV)
PORTLAND, OR (KPTV) -

Dogs and cats have better protection from physical abuse than infants. Prosecutors say that’s the frightening truth about Oregon law the way it’s written right now.

The quirk in the legal system is coming to light now, after a Sherwood couple went public claiming their baby boy was badly beaten, but his alleged abuser is walking free. 

An online petition seeking justice for their son Jacob is now going viral.

The Washington County District Attorney's Office can’t comment on the specifics surrounding Jacob’s case because it’s still an open and active investigation. But prosecutors said it does highlight major problems with the law that prevent them from protecting children.

“The term 'physical injury' to you and I means something very different than what it means under the law,” said Washington County Deputy District Attorney Kevin Barton.

To prove that a child is physically abused in court, prosecutors said they must produce evidence a child was in substantial pain, or there was an impairment of a child’s physical condition.

As Oregon law stands now, it also requires victims of abuse to be able to explain how they suffered. 

If victims are too young to communicate what happened, prosecutors said it’s difficult to charge their abuser with a crime, even if they have a confession and even if the crime is caught on camera.

“Unfortunately, we’re at a point where the law has departed from common sense,” said Barton.

“When we’ve seen a child with extensive bruises, like we do in many cases, we know they’ve gone through violent force and potentially life-threatening violence,” said Dr. Dan Leonhardt with CARES Northwest. “To think that just because there’s only bruises present, doesn’t mean a child has gone through something significantly violent is just not medically accurate.”

Both Leonhardt and Barton said they’re fighting to change that law. Prosecutors said the law stems from an Oregon court of appeals ruling back in 2012 in the State vs. Wright.  

Photos of a little boy horrifically beaten were front and center in that case. Prosecutors argued the photos were clear cut proof the boy suffered physical pain, but a court of appeals ruled it wasn’t enough to convict his abuser, because the boy couldn't explain that he was in pain.

“I have those pictures in arms reach of my desk, so when I review cases that come in my door, I know what the court of appeals says doesn’t count as physical abuse,” said Barton. “Then I ask is this case different than what doesn’t count, and that’s the struggle.”

Two senate bills were drafted in the past two years to change Oregon’s physical abuse law. Both Leonhardt and Barton said they testified in support of those bills, but the bills never made it out of the senate committee. 

They say they’re encouraged by the online petition for justice circulating on behalf of Jacob and his family. They now hope that momentum will carry on to Salem. 

“If this is an issue you care about, if you find these photos disturbing, then contact the legislature and let them know this is an issue you care about. We need the public’s help,” said Barton. "Hopefully the third time around it will work, and we can protect kids to the same level we protect animals."

FOX 12 spoke with Senator Floyd Prozanski about why the bill wasn’t moved through the Senate committee this year. Prozanski, who was chair of the committee, said the short session wasn’t the right time to move the bill and he didn’t want to rush to change the law. 

Prozanski said they will form a work group to talk about the issue further, and revisit the law next session.

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