Oklahoma Rape Defense Attorney: First & Second Degree Charges

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There are dozens of sex crimes with which a person can be charged under Oklahoma criminal law. However, when most people think of sex crimes the first offense that comes to mind is rape. While it may be one of the most well-known sex offenses, it is also one of the most widely misunderstood.

Oklahoma's Rape Laws

By definition, rape is nonconsensual sexual penetration. The term "nonconsensual" conjures images of violence; however, the most commonly prosecuted crimes do not involve physical force at all. In fact, many of them involve apparently consensual sex. Unfortunately for the men and women facing second degree charges, just because a person seems to offer consent does not mean he or she has the legal ability to do so.

The criminal code of the Oklahoma statutes define rape in 21 O.S. § 1111. According to the state law, it is an act of sexual intercourse, including vaginal or anal penetration, occurring under a specific set of circumstances including force or threat of violence; deception; incapacitation by drugs, alcohol, or other anesthetizing agent; or where a victim is unable through age, mental illness, custodial status, or student status to provide legal consent to sex.

State district attorneys prosecute several types:

  • First Degree or Forcible Rape
  • Second Degree or Statutory
  • By Instrumentation
  • Date and Spousal
  • Forcible Sodomy

First Degree Rape in Oklahoma

The state of Oklahoma defines rape in 21 O.S. 1111. State law defines rape using nine specific acts of nonconsensual sexual intercourse, including those in which a victim appears to give consent, but is legally unable to do so. A few sections later, in 21 O.S. 1114, the first degree offense is articulated through a list of seven acts:

  • Of a child younger than 14 by an adult older than 18
  • Of a person who is unable to provide legal consent to sex as a result of a mental illness or mental disability
  • That occurs when the perpetrator administers or is privy to the administration of a narcotic or anesthetic agent to intoxicate the victim as a means of forcing submission
  • That occurs when a perpetrator knows the victim is unconscious or unaware of the nature of the act
  • Forcible rape occurring through violence or force or the threat thereof when the perpetrator has the appears capable of executing the threat
  • By instrumentation that results in serious bodily harm
  • By instrumentation of a victim under the age of 14

Oklahoma law still lists first degree rape as a capital offense; however, the death penalty for non-homicide crimes was ruled unconstitutional by the United States Supreme Court in 2005. Rather, a first degree crime is punishable by a minimum of five years in prison and a maximum of life without parole. Considered an egregious sexual offense, it is subject to Oklahoma's "Eighty Five Percent Rule," which means that anyone convicted of the crime must serve at least 85 percent of his or her sentence before becoming eligible for parole.

Sentencing & Punishment

If convicted of first degree rape, a defendant will be designated a Level 3 sex offender, the category designated for violent offenders and those considered to be at highest risk of reoffending. He or she must register as a sex offender for life and verify his or her address with local law enforcement every three months.

This is a serious criminal allegation. If you are accused of, suspected of, or questioned about your sexual activity, do not talk to police or anyone else without the advice and presence of a qualified attorney.

Rape By Instrumentation

Rape by instrumentation is a subcategory that includes vaginal or anal penetration by an object or body part, but which does not amount to sexual intercourse. For instance, foreign objects, sex toys, or fingers could all be considered "instruments" when used for sexual penetration.

This type of carnal knowledge is considered to be rape by instrumentation when a victim does not consent to the act, whether or not the non-consenting party is married to the perpetrator. If a person agrees to the act, but is under the age of 16, a student committing the act with a school district employee, or a person in the custody or supervision of a government agency, his or her consent cannot be legally granted.

This is only considered a first degree crime if it is committed upon a minor under the age of 14 or if it results in serious bodily injury. In all other circumstances, it is a second degree crime.

2nd Degree or Statutory Rape

In Oklahoma second degree rape is defined as “all other cases” of nonconsensual sexual penetration. These involve apparent consent between parties when one of those parties does not have the legal authority to provide consent.

Statutory rape includes vaginal or anal penetration under the following conditions:

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

You can also check out this resource for more information on age of consent laws in the state of Oklahoma.

Spousal & Date Rape

Spousal and date rape are not individual categories of charges; rather, they are terms often used to describe specific types of first and second degree charges.

Forcible sodomy is not technically rape, as it may not involve anal or vaginal penetration. Typically forcible sodomy involves nonconsensual oral sex or oral copulation with a person who cannot legally consent to such an encounter.

Furthermore, a person may be guilty of spousal rape if sexual intercourse is achieved through force or violence or the threat of force or violence accompanied by the apparent power to carry out the threat.

Punishment for Convicted Rapists

Both first degree and statutory charges are punished severely, carrying heavy fines and lengthy prison sentences. Furthermore, both crimes are considered Level III sex offenses, which require lifetime registration in accordance with the Oklahoma Sex Offender Registration Act. This means that a person who has sex with someone who is completely willing but unable to provide legal consent, if convicted, will be branded as a rapist for life, unable to go near a school, work with children, or even visit a park as prohibited by sex offender status.

Rape Charge Defense Strategies

If you or a loved one are facing charges it is imperative that you speak with a qualified attorney before speaking with ANYONE else.  At Phillips & Associates we have successfully tried dozens of sex crime related cases.  Put our experience to work for you by calling today.  (405) 418-8888.If you are facing sex-related charges, time is critical in building a strong defense. Our experienced rape defense lawyers work quickly to gather evidence to support your defense, and we will carefully examine all avenues to bring the best possible resolution to your case.


If you've been charged with a crime, or believe you may be, don't delay. Time is critical.
Contact Phillips & Associates now so that we can begin reviewing your case.
Call our offices anytime at 405-418-8888 or complete the form below.

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