Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

Oklahoma Passes Bill to Close 'Loophole' in Forcible Sodomy Law


Our state made national headlines recently when the Oklahoma Court of Criminal Appeals issued a ruling upholding a lower court's finding that oral sex with a person who is unconscious from intoxication is not "forcible sodomy." Now, the state has passed a law that closed a "loophole" leading to the court's decision.

The case came about when a 17-year-old boy took a drunk 16-year-old girl home from a gathering. When the girl arrived home, she was unconscious and transported to a hospital. The girl, who was found to have a blood alcohol concentration of 0.34 percent, regained consciousness during a sexual assault exam. The girl remembered nothing, but the exam revealed the boy's DNA around her mouth.

The 17-year-old was charged as a youthful offender with Forcible Sodomy, but the case was dismissed because state law does not list alcohol intoxication as a circumstance of forcible sodomy as it does for rape.

The Tulsa County prosecutor called it "the orifice defense," noting that if the boy had sexual intercourse with the girl in her condition, he would have been guilty of rape.

The criminal appeals court upheld the dismissal, saying it would not expand the reach of the law beyond its fair language to justify prosecution.

Now, the state legislature passed a measure to enlarge the language of the statute to cover alcohol intoxication as a condition of forcible sodomy and to clearly define "sexual consent" in Oklahoma.

Prior to the passing of HB 2398, known as "The Justice for J.W. Act of 2016," the state's forcible sodomy statute (21 O.S. § 888) listed five circumstances for felony prosecution of oral sex:

  • Committed by person over 18 upon a person under 16; or
  • Committed upon a person incapable of giving legal consent because of mental illness or "unsoundness of mind"; or
  • Accomplished by means of force, violence, or threats of force or violence; or
  • Committed by a state, county, or city employee or contractor upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision; or
  • Committed upon a student under the age of 20 by an employee of the samey school system the student attends.

In addition to creating new laws defining consent, the Justice for J.W. Act adds two more criteria to those included as circumstances of forcible sodomy:

6. Sodomy committed upon a person who is at the time unconscious of the nature of the act, and this fact should be known to the accused; or

7. Sodomy committed upon a person where the person is intoxicated by a narcotic or anesthetic agent administered by or with the privity of the accused as a means of forcing the person to submit.

The above circumstances are already included in the state's rape laws.

While most laws passed by the state legislature and signed into law by Oklahoma's governor take effect on November 1 of the year they were passed, HB 2398 takes effect immediately.


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