Rape by Instrumentation in Oklahoma

rape by instrumentation arrest oklahomaRape by instrumentation is the penetration of an anus or vagina of a victim using an inanimate object or part of the human body other than the penis. It doesn’t matter whether it’s done to a spouse or someone of the same sex. Bodily harm doesn’t have to result. Any penetration, however slight, is enough to constitute rape by instrumentation.

One of the following circumstances must exist, and the act must be done without the victim’s consent:

  1. The victim is under 16;
  2. The victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;
  3. Force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;
  4. The victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;
  5. The victim is at the time unconscious of the nature of the act and this fact is known to the accused;
  6. The victim submits to the penetration 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, would be guilty of rape;
  7. 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 is penetrated by 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 the subcontractor or employee of a subcontractor of the contractor of the state or federal government, a county, a municipality, or a political subdivision that exercises authority over the victim;
  8. The victim is at least 16 and is less than 20 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 is penetrated by a person 18 or older and is an employee of the same school system;
  9. The victim is 19 or younger and is in the legal custody of a state agency, federal agency or tribal court and is penetrated by a foster parent or foster parent applicant; or
  10. The victim is at least 16 but less than 18 and the perpetrator of the crime is a person responsible for the child’s health, safety, or welfare. “Person responsible for a child’s health, safety or welfare” includes, but isn’t limited to:
    1. a parent,
    2. a legal guardian,
    3. custodian,
    4. a foster parent,
    5. a person 18 or older with whom the child’s parent cohabitates,
    6. any other adult residing in the home of the child,
    7. an agent or employee of a public or private residential home, institution, facility or day treatment program, or
    8. an owner, operator or employee of a child care facility.

Consent is not an element of the crime under the following circumstances:

  1. Where the victim is at least 16 and is less than 20 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 their anus or vagina is penetrated by an inanimate object or a part of the human body other than the penis by a person who is 18 or older and is an employee of the same school system,
  2. Where the victim is under the legal custody or supervision of a state or federal agency, county, municipal or a political subdivision and their anus or vagina penetrated by an inanimate object or a part of the human body other than the penis by a federal, state, 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.

Punishment For Rape by Instrumentation

All rape by instrumentation in Oklahoma is defined as First Degree Rape by Instrumentation. The punishment is the same as that of First Degree Rape. There is no Second Degree Rape by Instrumentation. Rape in the First Degree is a felony. A first offense is punishable by death or imprisonment in the Department of Corrections from five years–life or life without parole. Someone convicted of this for a second time is not eligible for any form of probation. A third or subsequent violation requires  imprisonment in the Department of Corrections for either life or life without parole.

Sex Offender Registration For Forcible Rape by Instrumentation

Anyone convicted of rape by instrumentation must register as a Sex Offender under the Oklahoma Sex Offender Registry Act. Rape by instrumentation is a level three sex crime in Oklahoma. This means an offender must register for life and verify their address every 90 days. In addition to being labeled a sex offender, individuals convicted of rape by instrumentation in Oklahoma must also comply with numerous laws that significantly affect their life. The offender must register with the local law enforcement agency. If the offender is a student, then he or she must notify the police or security department of any institution of higher learning. Someone convicted of rape by instrumentation will be designated as an aggravated sex offender.

Where Sex Offenders Can Live

A sex offender can’t live within a 2000 ft radius of any:

  • public or private school site;
  • educational institution;
  • property or campsite used by an organization whose primary purpose is working with children;
  • playground or park that is established, operated, or supported in whole or in part by a homeowners’ association or a city, town, county, state, federal or tribal government; a
  • licensed child care center or family child care home; or
  • the residence of his or her victim.

The distance is measured from the nearest property line of the residence of the sex offender to the nearest property line of the place listed above.

In any offense in which a minor child was the victim the sex offender can’t reside with a minor child or establish any other living accommodation where a minor child resides. Provided, however, the sex offender may reside with a minor child if the person is the parent, stepparent, or grandparent of the minor child and the minor child was not the victim of the offense for which the sex offender is required to register. A sex offender who resides with a minor child as the parent, stepparent, or grandparent of the minor child, provided the minor child was not the victim of the offense for which the sex offender is required to register, must report to the statewide centralized hotline of the Department of Human Services the name and date of birth of any and all minor children residing in the same household and the offenses for which the sex offender is required to register within three days of intent to reside with a minor child.

The restrictions on where a sex offender can’t live don’t apply to any registered sex offender residing in a hospital or other facility certified or licensed by the Oklahoma to provide medical services.

It’s illegal for two or more sex offenders to reside together in any individual dwelling during the term of registration as a sex offender. This restriction doesn’t apply to:

  • any properly zoned and established boarding house, apartment building or other multi-unit structure; provided the individual dwellings are separate for each registered person;
  • the sharing of living quarters, jail or prison space, or any multi-person or dormitory-style housing of sex offenders in the custody of any jail or correctional facility or any properly zoned facility under contract with a jail or correctional agency for the purpose of housing prisoners, or any properly established treatment or nonprofit facility located in a properly zoned area determined by the local governing authority and housing persons for purposes of sex offender services and treatment; and
  • married people, both of whom are required to register as sex offenders, or two or more blood relatives who are required to register as sex offenders, from residing in any individual dwelling during the term of registration as a sex offender.

“Individual dwelling” means:

  • a private residential property, whether owned, leased or rented, including all real property zoned as single-family residential property or zoned as multi-family residential property due to any adjacent, detached or separate living quarters of any kind on such property;
  • any room available within any boarding house or group home as such term is defined by subsection D of this section;
  • any single apartment for rent or lease within an apartment building; or
  • any separate residential unit made available for sale, rent or lease within a multi-unit structure, including a condominium, duplex, triplex, quadriplex, or any unit that is constructed together with other separate units into one structure.

“Multi-unit structure” means a structure with multiple residential units that provide independent living facilities for living, sleeping, cooking, eating, and sanitation within each individual unit. Manufactured homes, mobile homes, trailers, and recreational vehicles that do not meet the descriptions of this paragraph are not multi-unit structures.

Sex Offender Conditions

A sex offender applying for an original, renewal or replacement Class A, B, C or D driver license or identification card who is an aggravated or habitual offender must be issued a license or card bearing the words “Sex Offender”. When someone l is no longer required to register as a convicted sex offender with the Department of Corrections, the individual shall be eligible to receive a driver license or identification card which does not bear the words “Sex Offender”.

A sex offender may be prohibited from accessing or using any Internet social networking web site that has the potential or likelihood of allowing the sex offender to have contact with any child who is under 18 years old.

A court may order a sex offender to register any electronic mail address information, instant message, chat, or other Internet communication name or identity information that the sex offender uses or intends to use while accessing the Internet or used for other purposes of social networking or other similar Internet communication.

A court may require a sex offender to participate in a treatment program designed specifically for the treatment of sex offenders, if available. The treatment program has to include polygraph examinations specifically designed for use with sex offenders for the purpose of supervision and treatment compliance, provided the examination is administered by a certified licensed polygraph examiner. The treatment program must be approved by the Department of Corrections or the Department of Mental Health and Substance Abuse Services. The treatment must be paid for by the sex offender and based on the offender’s ability to pay.

Where Sex Offenders Can Go

A sex offender can’t loiter within 500 feet of any:

  • elementary, junior high or high school,
  • permitted or licensed child care center,
  • playground, or
  • park

The above doesn’t apply to someone convicted of a sex crime in another state of a crime that Oklahoma requires registration as a sex offender when the victim was 16 years old or older.

A sex offender is prohibited from entering any park if:

  • he or she has been designated as a habitual or aggravated sex offender in Oklahoma or
  • he or she has been convicted of an offense in another jurisdiction, which offense, if committed or attempted in Oklahoma, would designate him or her as a habitual or aggravated sex offender in Oklahoma

A sex offender is prohibited from loitering within 1,000 feet of the residence of his or her victim if:

  • the person who committed a sex crime against the victim has been convicted of said crime, and
  • the person is required to register pursuant to the Sex Offenders Registration Act.

A sex offender may attend a recognized church or religious denomination for worship. However, the sex offender must notify the religious leader of his or her status as a registered sex offender and the sex offender must be granted written permission by the religious leader.

If ordered by the court, a habitual or aggravated sex offender will be supervised by the Department of Corrections for the duration of the registration period and will be assigned to a global position monitoring device by the Department of Corrections for the duration of the registration period. The cost of the monitoring device will be paid for by the sex offender.

A sex offender who is assigned to a community corrections center, community work center, or halfway house, must wear a GPS monitoring system for the duration of the registration period if ordered by a judge. Any sex offender paroled must wear a GPS monitoring system.

Any sex offender who wants to travel internationally must inform his or her residence jurisdiction of any intended travel outside of the United States at least 21 calendar days prior to that travel. In order to be in compliance, offenders must notify the Sex and Violent Offender Registration Unit.

Work Sex Offenders Can’t Perform

It’s illegal for sex offenders to:

  • work with or provide services to children or
  • work on school premises.

It’s unlawful for any person or business which contracts for work to be performed on school premises to knowingly and willfully allow any sex offender to work with children or to work on school premises.

A registered sex offender can’t be employed as a:

  • peace officer
  • criminal investigator
  • private investigator,
  • or security guard.

Sources: 21 O.S. §§ 1111.1, 1113, 1114 & 1111; 47 O.S. § 6-111; 57 O.S. §§ 583, 589, 510.10, 584, 590, & 590.1; 22 O.S. § 991a ; and 43 O.S. § 2

Current as of June 19, 2019.

Charged with rape by instrumentation in Oklahoma? Call Oklahoma sex crime lawyer Frank Urbanic in OKC at 405-633-3420.

Don’t panic! Call Urbanic.®