A would-be correction to Oklahoma’s forcible oral sodomy law faces legislative opposition from critics calling the fix overwritten and dangerous to normal sexual consent.
The proposed new language, authored by Rep. Scott Biggs, R-Chickasha, purports to close a loophole recently uncovered in a 5-0 Oklahoma Court of Criminal Appeals ruling, which ordered charges dropped against a boy accused of forcing oral sex on a girl unconscious from heavy drinking. The ruling was detailed in a recent story by Oklahoma Watch.
The ruling provoked international outrage against the decision and uncharacteristically swift action in the Legislature, which fast-tracked a measure to address the court’s decision.
Recent opposition to Biggs’ bill bewildered supporters who submitted a petition for the change.
“I cannot understand why anyone would want to kill this bill. … Honestly, it seems like a no-brainer to me,” said Kelsey Bourgeois of Care2, a group that submitted the petition with more than 18,000 signatures.
Biggs said attorneys opposing the bill hired lobbyists to suggest changes to the law. He said the opposition is strong, with one lobbyist “cussing me out.”
“They just want to delay the process and slow the bill down, and we simply cannot do that to the victims in this state,” Biggs said. “Are you gonna err on the side of rape victims? Or are you going to err on the side of criminals who prey upon these victims?”
However, the Oklahoman Justice Society, led by Oklahoma City criminal defense attorney Jacquelyn Ford, says the proposed fix to the law is worse than the loophole and could result in people being jailed unnecessarily. Ford said her group proposes instead transferring elements from Oklahoma’s existing rape statutes to close the loophole.
“In this case, the rape in the first-degree statute has language specifically dealing with an unconscious person or a person incapable of giving consent. That language does not appear in the forcible oral sodomy statute,” Ford said. “I gave them exactly the language in the rape statute to replace the language that is currently there.”
However, she said, Biggs’ proposed fix goes far beyond the rape statutes.
“The language they propose is overly broad, vague, and will probably be struck down as unconstitutional the first time they are challenged because they are so overbroad,” Ford said. “More importantly, it is unnecessary.”
According to language added during a committee review, the proposed law states:
The term “consent” means the affirmative, unambiguous and voluntary agreement to engage in a specific sexual activity during a sexual encounter which can be revoked at any time. Consent cannot be:
1. Given by an individual who:
a. is asleep or is mentally or physically incapacitated either through the effect of drugs or alcohol or for any other reason, or
b. is under duress, threat, coercion or force; or
2. Inferred under circumstances in which consent is not clear, including, but not limited to:
a. the absence of an individual saying “no” or “stop”, or
b. the existence of a prior or current relationship or sexual activity.
Ford said the language permits a person engaged in sex to withdraw consent without being explicit, turning a previously consensual sex act into rape.
“You’d better have the entire thing on camera,” Ford said.
Ford said her group suggested a one-line change to the law reflecting Oklahoma’s existing rape statutes, which would make oral sex illegal if “committed upon a person who is at the time unconscious of the nature of the act and this fact is known to the accused.”
Ford said she has been given time to meet with the Senate Judiciary Committee to review her proposed changes.
However, Biggs said the language in his bill is based on guidelines from the U.S. Department of Justice, and clarifies Oklahoma’s laws, which he said have long needed updating.
“The simple fact is, some of these recommendations are found in other states as well as in federal recommendations,” Biggs said. “We’re not reinventing the wheel. We’re just making it crystal clear this time around.”
Biggs dismissed Ford’s argument about constitutionality.
“It’s the same old argument that they always make: Innocent people are going to jail. At the same time, innocent people are being victimized in Oklahoma,” Biggs said.
Biggs said after the committee meeting on Monday, the bill goes to the house floor on Tuesday or Wednesday, after which it will be taken up by the Senate.