A bill that would fix a legal loophole which could allow some accused of oral sodomy to go free is meeting resistance beneath the state Capitol dome with just weeks left for it to become law.
According to a source close to the discussion surrounding the bill, a group of defense attorneys under the name the Oklahoma Justice Society (OJS) is opposing the bill by attempting to put pressure on lawmakers to let the measure die. However, its reason for doing so is unknown.
“I have no common sense reason to say why anybody would oppose this legislation,” defense attorney Irven Box said on Wednesday.
But the unnamed attorneys in the OJS are not the only ones not fully backing the bill.
State Sen. Brian Crain, R-Tulsa, said he also has “concerns” about the language in the bill which requires a defined yes in the absence of a no prior to or during a sexual encounter.
“I don’t know that we want to whole-cloth start having people accused of rape and being brought into court on rape charges simply because their partner didn't say 'yes. I want to have an intimate relationship with you,'” Crain said in his office on Wednesday.
He is not running for re-election due to state set term limits.
He said he supports the spirit of the bill and closing the loophole, but said he didn’t want to rush into legislation.
When asked, twice, if he could vote in favor of the bill as written to close the loophole, Crain responded he did not want to get into “hypotheticals.”
The bill is response to a ruling by the Oklahoma Court of Criminal Appeals in April, which stated that Oklahoma’s forcible oral sodomy law doesn’t apply when a rape victim is intoxicated or unconscious.
State Rep. Scott Biggs, R-Chickasha, added language into an existing bill, House Bill 2398, that would amend the law to include instances where the victim is intoxicated or unconscious. The bill also clarifies that a person who is unconscious, incapacitated by drugs or alcohol, or is under threat, cannot be forced to perform a sex act.
HB 2398 is also known as the “Justice for J.W. Act,” named for a teenage girl from Tulsa. Because of the legal loophole, charges were dropped against a 17-year-old boy who was accused of raping her in 2014.
Law enforcement, domestic violence advocates and other lawmakers have said they also support the bill. Gov. Mary Fallin has also signaled her support of the measure.
Oklahoma County Sheriff John Whetsel called on lawmakers to pass HB 2398. He spoke to a group of reporters in a press conference from his office on Wednesday about the issue.
“While this may have been an oversight when it was originally written, it is time to fix this mistake that may allow a rapist to face a lesser charge, simply because the victim is unconscious,” Whetsel said. “As this legislative session nears an end, I urge lawmakers to pass this legislation that is so vital and important to our citizens.”
Tulsa County Sheriff Vic Rigaldo echoed Whestel in a statement released on Wednesday.
“The time is now to close this dangerous loophole in the law,” he wrote. “It’s a total injustice that [a] rapist could face a lesser charge because the victim is unconscious.”
Currently, the bill is in the General Conference Committee on Appropriations (GCCA) under the partial control of Sen. Clark Jolley, R-Edmond, who has yet to say whether he will allow the bill to be heard before going to an official vote.
If the bill does not make it out of the GCCA before session ends in just over two weeks, the loophole will remain open and lawmakers will have to re-draft a new piece of legislation next session.