Another state for the boycott list.
Is the law gender specific? Can only females be victimized? Can only males be assaulters?
@Consolation: We should probably clear this up now.
Prosecutors in the OK case charged a crime called “Forcible Sodomy.” Oklahoma, like many states, divides up its sexual assault law based on orifice. OK’s rape statute specifically includes when the victim is [intoxicated[/url]. Oklahoma’s forcible sodomy statute doesn’t.
[url=<a href=“http://www.oscn.net/applications/ocisweb/deliverdocument.asp?box1=21&box2=o.s.&box3=888%5DForcible”>http://www.oscn.net/applications/ocisweb/deliverdocument.asp?box1=21&box2=o.s.&box3=888]Forcible sodomy](OSCN Found Document:Rape Defined) is unlawful under several circumstances, only two of which are potentially relevant to the OK case:
- Sodomy 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; or
- Sodomy 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 victim or the person committing the crime;
The OK court said there was no force because the victim was unconscious. The victim was not mentally ill. “Unsoundness of mind” sounds on the surface like it could apply to intoxicated victims, but unfortunately that is already a defined term under Oklahoma law that doesn’t include intoxication.
But this doesn’t mean there was no crime, it just means that the crime of “forcible sodomy” doesn’t apply. What the prosecutor should have done is charge the crime of [sexual battery](Lewd or Indecent Proposals or Acts to Child Under 16). Sexual battery is unlawful when:
B. No person shall commit sexual battery on any other person. “Sexual battery” shall mean the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner:
- Without the consent of that person;
Sexual battery applies neatly, but the prosecutor didn’t charge it. That’s really the only issue.
@zoosermom: No. Even if it were, the 14th amendment would kick in.
I was being facetious. Men and boys are raped and assaulted, too, although that is often fodder for jokes and laughter.
Even the defense attorney seemed to suggest that.
Thanks, Demosthenes49.
No, this particular act was apparently never illegal in Oklahoma. In our system of justice, everything is assumed to be legal until it is prohibited by statute or regulation.
If you meant the court, then no of course not. Courts don’t make and pass legislation, only the legislature does, and the executive branch either agrees or vetoes, and if there is a veto the legislature can override with a supermajority vote.
If you meant the legislature, then sure the publicity from this is an opportunity to fix the omission, but it doesn’t change the ability to charge this defendant. Unless the act is illegal at the time the crime is committed, a person cannot be charged for committing that crime.
Courts at ANY level are supposed to interpret and enforce the law, and no court can make new law, not even the Supreme Court. The higher courts interpretations are the ones that hold sway over the lower courts, with the Supreme Court having the final voice, absent new legislation. But even the lowest courts have the right to interpret a statute that has not been interpreted previously.
Now the following is Federal, while this case was state, but the principle is the same. Even at the highest level except the Supreme Court, the courts are divided into districts, and one district Appeals Court might have one interpretation and a second one another. That would be a situation the SCOTUS would have to step in and make a final decision on the interpretation. The same would hold in Oklahoma. This is a criminal case, so the person cannot be retried. But in theory the Oklahoma Supreme Court could weigh in on interpreting a statute. More common would be for the legislature to clarify/add to the language of existing assault statutes.
Again, the law doesn’t allow things, the law penalizes things.
Only if you can show that this specific act was proposed to be made illegal and they failed to enact that legislation. Otherwise that is like saying that everything you never thought of, but should have, is your fault. Sometimes you really should have thought of it, other times it is a stretch to say that. In this case it probably should have been made illegal by now, but you still cannot throw logic or our whole philosophy of criminal justice out the window with loose rhetoric.
It is as if basic civics just is not taught any longer. Maybe it isn’t.
@fallenchemist: I don’t think the Oklahoma Supreme Court can speak as to proper interpretation of this statute. Oklahoma has a bifurcated court structure, so the Oklahoma Court of Criminal Appeals is the highest court in Oklahoma on criminal matters. It’s also the court that made the decision in the OP.
OK, thanks. Every state is different, and I certainly didn’t look into the OK particulars. As I said, the more normal route in any state, and apparently the only one in OK, is for the legislature to modify the existing statute or pass a new one.
@fallenchemist A bit condescending at the end don’t you think?
No, or I wouldn’t have said it. And while I realize I quoted you more than the others, it was really an exasperation over the many, many posts I have read over the years wherein too many people just no longer seem to grasp the fundamentals of things like the above, and even more what the First Amendment really says and how it applies to everyday life in this country. Of course the last has nothing to do with this thread, but it did color my commentary that you cited.
with all due respect, Cali, critical reading of the article that you posted was clear about the law:
And, from a group that supports victims rights by assisting prosecutors:
Zoosermom, of course men and boys can be raped and assaulted too, but criminal statutes can be very specific in their definitions. For example, at least the last time I looked into it, it was not possible to convict someone of “rape” in New York State for penetrating a man or boy without consent, because “rape” was specifically defined as, and limited to, penetration of a vagina without consent. However, the perpetrator of such a crime could be charged, instead, with “sexual assault,” which has no such statutory restriction, and, I believe, carries the same or similar penalties. So it’s really a question of semantics, although so far as I’m concerned, rape is rape and that’s what it should be called no matter who the victim is.
We can see from this thread how important it is to both analyze what one reads and line it up with some proper knowledge of the context, setting or, in this case, how law works.
It’s one thing to ask, another thing when one declares, especially based on one article or one first impression. IRL, we know how often headlines or spin misleads. Let’s try not to add to that.
Particularly if one is interested in journalism as a career.