In these two criminal cases, consolidated for the purposes of appeal, defendants each were charged with one count of aggravated murder, ORS 163.095(l)(e), and two counts of felony murder, ORS 163.115(l)(b), all the charges arising out of the death of the same victim. The section of the aggravated murder statute under which they were charged elevates murder to aggravated murder when the murder is committed “in the course of or as a result of intentional * * * torture of the victim.” ORS 163.095(l)(e). The trial court, in response to motions from both defendants, held that ORS 163.095(1) (e) is unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution, because the legislature has not provided a definition of “torture” in the statute.
1
Absent such a definition, the trial court held, courts and juries are not authorized to define and apply the term to the facts of a given case. The state appealed and the Court of Appeals, one judge dissenting, affirmed.
State v. Cornell/Pinnell,
A criminal statute violates Article I, sections 20 and 21, of the Oregon Constitution, if it is so vague that it allows a judge or jury unbridled discretion to decide what conduct is prohibited in a given case.
State v. Graves,
The question in this case boils down to whether, under the foregoing principles, the word “torture,” as used in ORS 163.095(l)(e), is impermissibly vague. The majority below found that, without a statutory definition, the term, “torture,” creates a serious danger of unequal application of the aggravated murder statute and permits a judge or jury to exercise uncontrolled discretion to decide what constitutes “torture.” Statutes challenged on vagueness grounds sometimes can be saved by judicial construction.
See, e.g., State v. Moyle,
“Oregon law provides no statutory definition of ‘torture.’ Our review of the legislative history also fails to enlighten us concerning what conduct the legislature intended would constitute ‘torture.’ Although the word ‘torture’ may be commonly understood, as the state and the dissent argue, that is not the test. See State v. Hodges, supra,254 Or at 27-28 . Commonly understood terms are often susceptible to varying interpretations, and ‘torture’ is such a term. Black’s Law Dictionary (5th ed 1979) defines it as the ‘inflict[ion of] intense pain to body or mind for purposes of punishment, or to extract a confession or information, or for sadistic pleasure.’ Webster’s Third New International Dictionary (1976) provides several definitions, including:
“ ‘The infliction of intense pain (as from burning, crushing, wounding) to punish or coerce someone * * *.
*31 “ ‘To punish or coerce by inflicting excruciating pain * * *.
“ ‘To cause intense suffering * * *.’
a* * * * *
“Although each of those definitions is commonly understood to be ‘torture,’ the variations among them give rise to several questions concerning the Oregon legislature’s intent: Would only the infliction of physical pain be considered ‘torture,’ or would only proof of mental suffering be sufficient under the statute; would the state be required to prove that the pain or suffering was inflicted for some particular purpose (such as to coerce, to punish or for sadistic pleasure), or would proof of the infliction of pain itself be sufficient; and would the state have to show a prolonged period of suffering, or would the infliction of pain no matter how short its duration be adequate. These questions lead us to conclude that an allegation of murder by torture under ORS 163.095(l)(e) cannot be submitted constitutionally to a jury without a definition of the term ‘torture,’ because otherwise the jury would be allowed impermissibly to determine a defendant’s guilt in an ad hoc manner, unregulated by legislative standards. State v. Graves, supra. Additionally, without a legislatively articulated standard for the term, a trial court would have no standard for submitting one case to a jury and refusing to submit another case with a different set of facts. State v. Hodges, supra,254 Or at 27 .”83 Or App at 562-63 .
We assume that, in performing its law-making role, the legislature intends to act within constitutional bounds. See
State v. Anthony,
Not every infliction of intense physical pain, even through an intentional act known by the actor to be intensely painful, qualifies as “torture.” The act must be intentional, of course, but the word “torture” itself connotes that the infliction of pain is one reason for the defendant’s intentional act. To utilize the statute, the state must prove that the perpetrator had this objective apart from responsibility for the death of the victim. But the statute does not further require that the pain also be inflicted for one of several enumerated purposes, such as revenge, coercion or sadistic pleasure.
Compare, e.g., State v. Brock,
101 Ariz 168, 171,
We hold that the term “torture” in ORS 163.095(l)(e), as we have construed it in this opinion, is not so vague as to offend Article 1, section 20, of the Oregon Constitution, by creating a serious danger of unequal application of that statute. Similarly, we hold that the statute does not offend Article 1, section 21. A judge and jury are not granted unbridled discretion with respect to the application of the *33 term. Finally, because the term, “torture,” as we have construed it, has a settled definition, it provides, with a reasonable degree of certainty, fair notice of what conduct is prohibited. Therefore, the enhancement of punishment for murder by torture is not so vague that it offends the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 4
The decision of the Court of Appeals is reversed; the decision of the trial court is reversed. The cases are remanded to the trial court with instructions to reinstate the indictments and for further proceedings.
Notes
Article 1, section 20, of the Oregon Constitution, provides:
“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
Article 1, section 21, of the Oregon Constitution, provides, in pertinent part:
“No ex-post facto law * * * shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution * * *.”
The Fourteenth Amendment to the United States Constitution provides, in pertinent part:
“No State shall * * * deprive any person of life, liberty, or property, without due process of law * *
It is far less clear that the legislature considered the question whether purely mental anguish, as opposed to physical pain, is covered by the statute. Absent some legislative intimation, we decline to assume that it is, and therefore hold that the legislature intended to restrict the statute as presently written to cover only the infliction of physical pain.
We also note that, in a slightly different context, this court in
State v. Goodall,
“The indictment in the present case charges that the defendant cruelly tortured and tormented the animal by riding it when it had a deep, ulcerated sore on its back, and by supplying it with insufficient food. The Standard Dictionary defines torture as ‘the act or operation of torturing; the infliction of or subjection to extreme physical pain.’ The same authority defines torment thus: ‘To subject to excruciating bodily or mental suffering.’ ”
As already indicated, we find the same methodology satisfactory in establishing a constitutionally permissible interpretation of the word “torture” in ORS 163.095(l)(e).
In so holding, we note that a number of other jurisdictions have rejected vagueness challenges to the statutory use of the word “torture.”
Chambers v. State,
364 So2d 416 (Ala Cr App 1978);
State v. Stuart,