Oklahoma State Legislators! Please Make These Changes to Your State's Laws

My Facebook and Twitter accounts were abuzz yesterday with reports of this recent opinion by the Court of Criminal Appeals of Oklahoma in which the Court held that a juvenile defendant was not guilty of forcible sodomy under Oklahoma law because his victim was passed out from intoxication when the defendant forced her to engage in oral sex.  The Court noted that it was bound by the "very specific" requirements for the commission of the crime of forcible sodomy. Those five scenarios in which forcible sodomy occurs are (under 21 Ok. Stat. § 888(B)):

1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or 

2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or

3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or 

4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or 

5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system.

Note that "sodomy," remains undefined beyond the description provided in 21 Oklahoma Statutes §886 which eloquently states that sodomy is "the detestable and abominable crime against nature." More on this later.

Following this ruling, outrage ensued, with several outlets (e.g.: here and here) erroneously reporting that Oklahoma law provides that "it isn't rape if the victim is drunk." This is actually untrue, as Oklahoma's law against rape (Ok. Stat. § 1111(A)(4)) specifically provides that the definition of rape includes sex with one who "is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit."

Oh, hang on, I should clarify that the rape-by-intoxication crime applies only when the victim is not the perpetrator's spouse. More on this later.

Oklahoma legislators announced that they are working to close this loophole in the law against forcible sodomy. If the legislature copies the language above from subsection (A)(4) of Oklahoma's rape statute into the forcible sodomy statute, this should solve the problem. To any Oklahoma state legislators who are reading this post, please do that.

While doing the research to write the post so far, however, I discovered some other areas of Oklahoma criminal law that may be due for some revision. I encourage all of my readers, especially those who are Oklahoma state legislators, to continue reading beyond the break.




Take, for instance, Oklahoma's general law prohibiting sodomy altogether. 21 Oklahoma Statutes §886 prohibits sodomy altogether, stating:

Every person who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast, is punishable by imprisonment in the custody of the Department of Corrections not exceeding ten (10) years. Except for persons sentenced to life or life without parole, any person sentenced to imprisonment for two (2) years or more for a violation of this section shall be required to serve a term of post-imprisonment supervision pursuant to subparagraph f of paragraph 1 of subsection A of Section 991a of Title 22 of the Oklahoma Statutes under conditions determined by the Department of Corrections. The jury shall be advised that the mandatory post-imprisonment supervision shall be in addition to the actual imprisonment.

For those readers wondering why the defendant in the case described above was not simply convicted of sodomy: this outcome was foreclosed because section 886 is unconstitutional. The Supreme Court in Lawrence v. Texas held that laws prohibiting sodomy violated due process. Oklahoma's law against sodomy in general is therefore plainly unconstitutional. The legislature should get rid of it, and should probably also define "sodomy" with something more specific (and less biblical) than "the detestable and abominable crime against nature."

If Oklahoma's legislature is looking into changing outmoded criminal laws, perhaps they should also look over Oklahoma's law of rape. Currently, rape is defined in 21 Oklahoma Statutes § 1111 as follows:

A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator under any of the following circumstances: 

1. Where the victim is under sixteen (16) years of age; 

2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent; 

3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person; 

4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit; 

5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused; 

6. Where the victim submits to sexual intercourse under the belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief. In all cases of collusion between the accused and the spouse to accomplish such act, both the spouse and the accused, upon conviction, shall be deemed guilty of rape; 

7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or 

8. Where the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system. 

B. Rape is an act of sexual intercourse accomplished with a male or female who is the spouse of the perpetrator if force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person.

See those eight definitions of rape under 1111(A)? If the victim and defendant are married, the only situation in which rape can occur is under definition number three.  Sex with somebody who is unconscious, intoxicated, or mentally ill is not rape as long as the parties are married. I hope the Oklahoma Legislature takes note of this as they are revising the law of rape.

Also, on a completely unrelated note, while sifting through Oklahoma's criminal statutes, I found out that psychics who charge fees are prohibited under Oklahoma law. 21 Oklahoma Statutes § 931 states:

It shall be unlawful for any person or persons, pretending or professing to tell fortunes by the use of any subtle craft, means or device whatsoever, either by palmistry, clairvoyancy or otherwise, plying his or her trade, art or profession within the State of Oklahoma, to make any charge therefor either directly or indirectly or to receive any gift, donation or subscription by any means whatsoever for the same.

This law is silly and should be eliminated. The issues involved here are a bit less serious than those I've discussed so far, but I might as well lump this proposal in with my others. I admit to making this suggestion partially out of self-interest, as I am concerned that my hobby of predicting law school exam questions may be deemed a "subtle craft" by which I tell the fortunes of law students.