In Oklahoma, there are a number of different types and classes of the crime of Rape: Rape First Degree and Second Degree, Rape by Instrumentation. Rape cases sometimes involve those violent and terrifying scenes that most people associate with the word Rape. However, charged rape cases in Oklahoma look nothing like what the average Oklahoman thinks they would look like. Typically, Oklahomans think of rape as a violent crime such as the stranger rape case where there is physical violence that is used against the victim, or the defendant used the fear of great bodily injury or death, to force or coerce sexual intercourse from their victim.
That stautory authority in Oklahoma for these crimes are found at 21O.S.1114 and 21O.S.1111.1, and in the Oklahoma Uniform Jury Instructions that accompany these charges are found at CR-4-120,4-124, and 4-125
Violent stranger rape cases actually account for a very small percentage of the cases that are ultimately filed. These violent rape cases are sensationalized by media and newsworthy. The media loves rape cases because they strike fear into the hearts of everyone that hears about them, all the while driving up their ratings in the process. However, stranger rape cases cases are actually only a very small number of the rape charges that are filed every year in Oklahoma.
More often than the stranger rape, one type of first degree rape cases I see regularly are those cases where the defendant is over 18 years old, and they are having sex with another person that is under 14 years old. In Oklahoma the, if the victim is under 14, i.e. their 13 years old, and the person they had sex with is at least 18 years old, that constitutes First Degree Rape because of the (1) wide gap in age difference; and more importantly, (2) the young age of the victim. Again, as you probably already know now, the age of consent in Oklahoma is 16 years old, but if your partner is under 14 years of age, you will be charged with First Degree Rape.
Also, in First Degree Rape cases, far more often than stranger rape cases, I see Date Rape cases charged as First Degree Rape. Often the rape alleged in these cases involves intoxicants, unconsiousness, or force or fear. The defendant is not a stranger. Learn more about Date Rape here.
Rape and Intoxicants
Those cases where the victim was intoxicated and they were given an intoxicant by the defendant (or with the defendants knowledge) and the defendant used the intoxicant as a means of getting the victim to have sex with them or to negate their victims ability to consent is First Degree Rape.
What that means to you is if you ply your subject with alcohol (or any intoxicant really), or you're having someone else ply them with alcohol and you then have sex with the intoxicated person, knowing the victim is so intoxicated they do not have the ability to legally consent to the act of sex, you are commiting First Degree Rape.
Situations where the victim is unconsious, and they don't have any idea of the nature and the act that is going on, or the victim is coming in and out of consiousness and does not have the capacity to withdraw consent (or to even give consent), and the fact the victim is unconscious, is known to the defendant who is having sex with them, that forms the basis for a First Degree Rape charge in Tulsa County.
There are other situations where First Degree Rape is also charged, but not to the same degree or in the same numbers as those previous situations. Those other situations are addressed in the Oklahoma Statutes and Uniform Instructions you can find below.
When analyzing your exposure to the charge of First Degree Rape look for any of the factors that exist in a typical rape case, such as force, fear, intoxicants, mental illness, unconsciousness, the relationships of the parties, employment rules, etc.
Rape is obviously take very seriously by the DA's office across the state. When they get these charges in or make the filing decision to charge a client with Rape, their plea recommendations always involve prison. Most often, their recommendations are double digit prison sentences.
Second Degree Rape
Second degree rape is a very serious felony charge in Oklahoma. 2nddegree rape is found under the same Oklahoma statutes as first degree rape, 21 O.S. 1111 and 21 O.S. 1114. Under Oklahoma law the penalty for second degree rape is from one year in prison up to fifteen years in prison. A conviction for this charge also requires lifetime registration as a sex offender.
Second degree rape, also known as Statutory Rape typically involves a fact pattern where the sexual intercourse takes place, and the accuser, or “victim” as the prosecution calls them, is under the age of 16, 14 or 15 years old to be exact, and the defendant is 18 years of age and over. This is your typical statutory rape (2nddegree rape) case fact pattern. A high school kid is dating a 15-year-old girl. He then turns 18, she is still 15, he has sex with her, and in Oklahoma that equals second degree rape that a DA’s Office will file charges on.
2ndDegree Rape also comes in other varieties. We are seeing more and more cases where employees of schools are having sex with students anywhere from age 16 to 19. Above the legal age of consent. The employee (now defendant) does not even have to be a teacher. If you are an employee of the same school district the student is attending, even if that student is 19 years old, you can be charged with second degree rape.
If the accuser is in jail, Bureau of Prisons, Department of Corrections, on probation with the department of corrections or with the DA’s Office, and a member of that law enforcement agency, department of corrections, jailer, etc., has consensual sexual intercourse with the inmate or the probationer, that sexual intercourse is second degree rape in Oklahoma.
If the accuser is nineteen years of age or younger and is in the custody of the state, the federal or tribal government and has sex with a foster parent or foster parent applicant, that sexual intercourse is also second-degree rape in Oklahoma.
Starting November 1, 2018, this 2ndDegree Rape statute has been amended and additional sexual conduct is now classified as 2nddegree rape. If the accuser is at least 16 years old, but less than 18 years old, and a person who is responsible for the child’s health, safety, or welfare has sexual intercourse with the child, that conduct is criminal under the 2nddegree rape statute. The person responsible for health, safety or welfare is defined as a parent, legal guardian, custodian, foster parent, any person 18 years of age or older that lives with the child, any other adult residing in the home of the child, an owner, operator, or employee of a child care facility, an agent or employee of a public or private residential home, institution, facility or day treatment program.
2ndDegree Rape by Instrumentation
Rape by instrumentation has both a first and second degree charging classification. 2nddegree rape by instrumentation is the penetration of the anus or the vagina by any inanimate object or body part other than the penis where there is no bodily harm to the “victim”. What most often is charged is alleged conduct that is what we call “digital penetration.” Digital penetration is simply the fingers penetrating the anus or vagina of the accuser. Digital penetration means the “digits,” your fingers. Rape by Instrumentation does not have to be some foreign or inanimate object, just anything other than the gentleman's penis, but most commonly the fingers.
Statutory Authority and Oklahoma Uniform Jury Instructions
RAPE IN THE FIRST DEGREE-SECOND DEGREE
21 O.S. Section 1114
A. Rape or Rape By Instrumentation in the Frst Degree shall include:
1. Rape committed by a person over eighteen (18) years of age upon a person under fourteen (14) years of age;
2. Rape 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;
3. Rape accomplished 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;
4. Rape accomplished where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;
5. Rape 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 person committing the crime; or
6. Rape by instrumentation regardless of the age of the victim or the age of the person committing the crime.
B. In all other cases, rape is rape in the second degree.
Oklahoma’s statutes go further and define Rape in 21 O.S. section 1111; Rape Defined:
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 the subcontractor or employee of a subcontractor of the contractor of the state or federal government, a county, a municipality or a political subdivision that exercises authority over the victim;
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;
9. Where the victim is nineteen (19) years of age or younger and is in the legal custody of a state agency, federal agency or tribal court and engages in sexual intercourse with a foster parent or foster parent applicant; or
10. Where the victim is at least sixteen (16) years of age but less than eighteen (18) years of age and the perpetrator of the crime is a person responsible for the child's health, safety or welfare. "Person responsible for a child's health, safety or welfare" shall include, but not be limited to:
a. a parent,
b. a legal guardian,
d. a foster parent,
e. a person eighteen (18) years of age or older with whom the child's parent cohabitates,
f. any other adult residing in the home of the child,
g. an agent or employee of a public or private residential home, institution, facility or day treatment program as defined in Section 175.20 of Title 10 of the Oklahoma Statutes, or
h. an owner, operator or employee of a child care facility, as defined by Section 402 of Title 10 of the Oklahoma Statutes.
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.
RAPE IN THE FIRST DEGREE - ELEMENTS
No person may be convicted of rape in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, sexual intercourse;
Second, with a person who was not the spouse of the defendant [and who may be of the same sex as the defendant];
[Third, where the defendant was over the age of eighteen, and the victim was under the age of fourteen].
[Third, where the victim was incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent].
[Third, where the victim was intoxicated by a/an narcotic/(anesthetic agent);
[Fourth, (given by)/(with the knowledge of) the defendant;
[Fifth, as a means of forcing the victim to submit].
[Third, where the victim was at the time unconscious of the nature of the act and this fact was known by the defendant].
[Third, [where force/violence was used against (the victim)/(another person)]/ [where force/violence was threatened against (the victim)/(another person) and the defendant had the apparent power to carry out the threat of force/violence].
Statutory Authority: 21 O.S. 2011, §§ 1111(A), 1114.
RAPE IN THE SECOND DEGREE - ELEMENTS
No person may be convicted of rape in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, sexual intercourse;
Second, with a person who is not the spouse of the defendant [and who may be of the same sex as the defendant];
[Third, where the victim was under the age of sixteen].
[Third, where the victim was under the belief induced by the defendant that the victim was having intercourse with his/her spouse].
[Third, where the victim was under the legal custody/supervision;
Fourth, of a (state/federal agency)/county/municipality/(political subdivision); and
Fifth, the defendant was an employee/(employee of a [subcontractor of a] contractor of)/the (state/federal agency)/county/municipality/(political subdivision) that exercised authority over the victim;].
[Third, where the victim was between sixteen and twenty years of age;
Fourth, the victim was a student/(under the legal custody/supervision) of a/an (elementary/secondary school)/(junior high)/high/(public vocational) school;
Fifth, the defendant was eighteen years of age or older; and
Sixth, the defendant was an employee of the victim's school system].
Third, where the victim was nineteen years of age or younger; and
Fourth, in the legal custody of a (state/federal agency)/(tribal court); and
Fifth, the defendant was a (foster parent)/(foster parent applicant).
[Fourth, where the victim was at least sixteen years of age but less than eighteen years of age; and
Fifth, the defendant was a person responsible for the victim's health, safety or welfare].
A person responsible for a child's health, safety or welfare includes, but is not limited to [Select applicable type of person]: a/an parent/(legal guardian)/custodian/(foster parent)/(person living with the child's parent and is eighteen years of age or older)/(adult residing in the child's home)/ (agent/employee of a public/private (residential home/institution/facility)/(day treatment program)/(owner/operator/employee of a child care facility).
You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.
Statutory Authority: 21 O.S. Supp. 2019, § 1111, 21 O.S. 2011, § 1114.
Hiring an attorney dedicated to these cases is essential to your defense. Do not hesitate, call Lee Berlin today at (918) 384-0850