Oklahoma is very specific about forcible sexual contact. The law provides several variations for the crime of rape. There are four main types of rape charges:
- First Degree Rape.
- Second Degree Rape.
- First Degree Rape by Instrumentation.
- Second Degree Rapt by Instrumentation.
It is possible and even likely that you are looking at more than one charge of rape or one of its variations as well as one or more “companion” charges of sexual battery, forcible sodomy, indecent exposure, kidnapping, lewd molestation, or child sexual abuse. This type of “stacking” or over-charging is not an uncommon tactic by prosecutors in Oklahoma and certainly a topic that must be discussed when you come in for a consultation on your case.
All rape charges in Oklahoma are felonies. A person convicted of any one of the four types of rape faces the additional requirement of registration as a sex offender, as provided under the Sex Offender Registration Act (SORA). First degree rape and first degree rape by instrumentation both carry the same range of punishment: at least five years incarceration by the Department of Corrections (DOC), up to life in prison. Second degree rape and second degree rape by instrumentation both are punished by one to 15 years in DOC.
What Is First Degree Rape in Oklahoma?
Most of the time when people think of first degree rape, they envision a violent stranger rape—such as the stranger attacking in a dark alley or while walking to your car late at night. While this violent rape does constitute first degree rape, it is only one of a number of different versions of sex crimes that can result in a filing of first degree rape.
First degree rape also includes:
- Sex between someone over 18 with someone under 14.
- Sex with a person suffering from mental illness or unsoundness of mind where the victim is incapable of giving legal consent.
- Sex with someone intoxicated by a narcotic or anesthetic agent such as Rohypnol, given by the other for the purpose of forcing the person to submit. Date rape can fall into this category.
- Sex with someone unconscious, and the perpetrator know the victim was unconscious—for example, sex with someone who gets drunk and passes out.
- Sex between husband and wife if force or violence is used or threatened to accomplish the act of sex. This is also known as spousal rape.
Rape by Instrumentation Can Be a First or Second Degree Offense
Rape by instrumentation is when someone uses an inanimate object or any part of their body other than the penis or vagina in the carnal knowledge of that person, without permission, and where penetration of the vagina or anus occurs. Most often this is seen as digital penetration, where the accused used fingers—“digits”—to penetrate the victim.
First degree rape by instrumentation is either when bodily harm occurs from the penetrating act or the act is committed on someone under 14 years of age. So if there is no bodily harm and the victim is 14 years of age or older, the conduct can be no greater than second degree rape by instrumentation under Oklahoma’s rape statute. The defendant could still be charged with lewd molestation or child sexual abuse, depending upon the age of the victim and the relationship, if any, to the victim
In all cases other than those described above, the charge of rape or rape by instrumentation is in the second degree.
What Is Second Degree Rape?
Second degree rape, commonly called “statutory rape,” is having sex with someone aged 14 or 15 years old (not under 14, and not over 15). The age of consent in Oklahoma is 16 years old. Sixteen years old is the legal age for which a person can legally consent to have sexual intercourse or contact with another.
In a second degree rape case, the defendant (the person charged) does not have to be 18 years of age or older. You can still be charged with second degree rape if you are 16 or 17 years old and you have sex with a 14– or 15-year-old. Attending high school and in a “boyfriend and girlfriend” relationship is not a defense when the age of one of the participants is under 16.
Second degree rape can also be charged in the following situations:
- When the victim is tricked into having sex with another, believing the other person is their spouse.
- When the victim is under the legal custody of a governmental agency and has sex with an employee of the agency which has control or custody. An example commonly seen in Oklahoma is a jail inmate having sex with a deputy at the jail.
- When a student between the ages of 16 and 20 has sex with an employee of the same school and the employee is age 18 or older.
- When the victim is 19 years old or younger and has sex with a foster parent or foster parent applicant.
Let an Experienced Criminal Defense Attorney Help in Your Defense
Rape charges are complex and the defenses that must be developed are unique in each case and for each client. The best way to determine the correct course of action and defenses available to you is to retain a lawyer devoted exclusively to this very specific and challenging area of the law.
Call me today to schedule the initial client meeting so I can get started on creating your unique defense as soon as possible.