Category: Blog

Must Instruct Jury On Definition Of Consent In Sex Crime Cases – 2017 Oklahoma Laws #13

oklahoma consent lawOklahoma criminal courts must instruct the jury on the definition of consent in any crime involving any type of sexual contact or behavior where “consent” is an element of the crime or defense raised by the accused. HB 1127 modified 21 O.S. § 112. It went into effect November 1, 2017.

“Sexual assault” is any type of sexual contact or behavior that occurs without explicit consent of the recipient including, but not limited to, forced sexual intercourse, forcible sodomy, child molestation, child sexual abuse, incest, fondling, and all attempts to complete any of the aforementioned acts.

“Consent” is the affirmative, unambiguous, and voluntary agreement to engage in a specific sexual activity during a sexual encounter that can be revoked at any time.

Consent cannot be given by an individual who is:

  1. asleep or is mentally or physically incapacitated either through the effect of drugs or alcohol or for any other reason or
  2. is under duress, threat, coercion or force.

Consent cannot be inferred under circumstances in which consent is not clear including, but not limited to:

  1. The absence of an individual saying “no” or “stop” or
  2. The existence of a prior or current relationship or sexual activity.

This change will affect many people charged with sex crimes and give a uniform definition of consent. The definition now used has only been in effect by statute since 2016. This law will likely result in less appeals based on the wording of “consent” in the jury instructions.

Sources: HB 112721 O.S. § 112, & 21 O.S. § 113

Are you accused of a sex crime in Oklahoma?

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Statute Of Limitations Change For Sexual Crimes Against Children – 2017 Oklahoma Laws #12

child sexual abuse oklahomaProsecutions for sexual crimes against children must now be initiated by the forty-fifth birthday of the alleged victim. If the victim is 18 years old or older, then the prosecution must now be initiated within 12 years after the discovery of the crime. Previously, prosecution of sexual crimes against children must have been initiated within 12 years after the discovery of the crime–regardless of the victim’s age. The sexual crimes against children include rape or forcible sodomy, sodomy, lewd or indecent proposals or acts against children, involving minors in pornography, child abuse pursuant, and child trafficking.

This change in law makes it possible to prosecute more people for sexual crimes against children. For example, under the previous law, an individual sexually assaulting a 15 year old could not be prosecuted once the victim turned 28 years old if the crime was discovered when the victim was 15 years old. Under the new law, the victim in the example would have an additional 17 years to have that crime prosecuted.

Prosecutions for the sexual crimes against children may be started at any time after the commission of the offense if 1) physical evidence is collected and preserved that is capable of being tested to obtain a profile from DNA and 2) the identity of the offender is subsequently established through the use of a DNA profile. A prosecution under this exception must be started within three years from the date on which the identity of the suspect is established by DNA testing.

The following changes were also made:

  • No prosecution for sexual crimes against children may be based upon the memory of the victim that has been recovered through psychotherapy unless there is some evidence independent of such repressed memory.
  • Any person who knowingly and willfully makes a false claim of a sexual crime against a children or a claim that the person knows lacks factual foundation may be reported to local law enforcement for criminal investigation and, upon conviction, shall be guilty of a felony.
  • With regards to sexual crimes against children, “discovery” means the date that a physical or sexually related crime involving a victim 18 years old or older is reported to a law enforcement agency.

HB 1468 amended 11 O.S. § 152. This change went into effect on November 1, 2017.

Sources: HB 1468 & 11 O.S. § 152

Charged with a sexual crime against a child?

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All Rape By Instrumentation Is Now First Degree Rape – 2017 Oklahoma Laws #11

All rape by instrumentation in Oklahoma is now defined as First Degree Rape by Instrumentation. This law change removes Second Degree Rape By Instrumentation. There is no longer a requirement of bodily harm or consideration of the victim’s age for a rape by instrumentation to constitute First Degree Rape By Instrumentation. Prior to November 2017, First Degree Rape By Instrumentation required either bodily harm or a victim 13 years old or younger.

Rape or Rape by Instrumentation in the First Degree occurs when the rape is:

oklahoma rape

  1. Committed by a person over 18 upon a person under 14;
  2. 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;
  3. Accomplished where 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;
  4. Accomplished where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;
  5. 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 person committing the crime; or
  6. By instrumentation regardless of the age of the victim or the age of the person committing the crime.

Rape in all other situations is Rape in the Second Degree. Rape by instrumentation occurs when any inanimate object or any part of the human body, not amounting to sexual intercourse, is used in the carnal knowledge of another person without his or her consent and penetration of the anus or vagina occurs to that person. Note—nobody can be convicted of rape or rape by instrumentation on account of an act of sexual intercourse with anyone over the age of 14, with his or her consent, unless such person was over the age of 18 years at the time of such act.

Punishment for Rape in the First Degree

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.

HB 1005 amended 21 O.S. § 1114. It went into effect November 1, 2017.

Sources: HB 100521 O.S. § 111421 O.S. § 111521 O.S. § 1111.1, 21 O.S. § 1113, & 21 O.S. § 1112.

Facing rape charges?

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Domestic Abuse Victims Can Transfer Wireless Phone Numbers & Utilities – 2017 Oklahoma Laws #10

The petitioner (victim) in a victim protective order may now get their wireless telephone numbers and utility account transferred and billed to themselves without divulging their address to the account holder. This situation may arise when the perpetrator is paying for the victim’s service. The bill’s goal is to ensure that a petitioner can maintain an existing wireless telephone number or household utility account without having their personal information disclosed to the perpetrator.

How To Transfer The Phone Number Or Utility Account

A court may issue an order directing a wireless service provider or public utility provider to transfer the billing responsibility for and rights to the wireless telephone number, numbers of any minor children in the care of the petitioning party, or household utility account to the petitioner if the petitioner is not the wireless service or public utility account holder.
victim protective order phone number oklahoma
The order transferring billing responsibility for and rights to the wireless telephone number or numbers or household utility account to the petitioner must list the name and billing telephone number of the account holder, the name and contact information of the person to whom the telephone number or numbers or household utility account will be transferred, and each telephone number or household utility to be transferred to that person. The contact information of the petitioner must not be provided to the account holder in these proceedings.

Upon issuance, a copy of the final order of protection must be transmitted to the registered agent of the wireless service provider or public utility provider listed with the Secretary of State or Corporation Commission of Oklahoma or electronically to the email address provided by the wireless service provider or public utility provider.

What If The Provider Can’t Comply With The Order

If the wireless service provider or public utility provider cannot put the order into effect due to certain circumstances, the wireless service provider or public utility provider must notify the petitioner. Such circumstances include, but are not limited to, the following:

  1. the account holder has already terminated the account,
  2. the differences in network technology prevent the functionality of a mobile device on the network, or
  3. there are geographic or other limitations on network or service availability.

What Happens After The Transfer

Upon transfer of billing responsibility for and rights to a wireless telephone number (or numbers) or household utility account to the petitioner by a wireless service or public utility provider, the petitioner will assume all financial responsibility for the transferred wireless telephone number (or numbers), household utility account, monthly service, utility billing costs, and costs for any mobile device associated with the wireless telephone number or numbers. The wireless service or public utility provider has the right to pursue the original account holder for purposes of collecting any past due amounts owed to the wireless service provider or public utility provider.

This law doesn’t preclude a wireless service provider or public utility provider from applying any routine and customary requirements for account establishment to the petitioner as part of this transfer of billing responsibility for a household utility account or for a wireless telephone number or numbers and any mobile devices attached to that number including, but not limited to, identification, financial information, and customer preferences.

No cause of action can be taken against any wireless service provider or public utility provider, its officers, employees or agents for actions taken in accordance with the terms of a court order issued under the provisions of this law.

HB 1466 modified 22 O.S. § 60.4. This law went into effect November 1, 2017.

Sources: HB 1466 & 22 O.S. § 60.4

Information from The Urbanic Law Firm on how to get a Victim Protective Order in Oklahoma.

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Oklahoma Legislature Jacks Up More Fees On Defendants – 2017 Oklahoma Laws #9

oklahoma convict

Since defendants apparently aren’t being charged enough in fees already, our legislature has decided to double the Forensic Science Improvement Assessment. It went to $10 on November 1, 2017. This applies to any person convicted of any offense, including traffic offenses, but excluding parking and standing violations, punishable by a fine of $10.00 or more or by incarceration, or any person forfeiting any bond when charged with any offense.

SB 38 amended 20 O.S. § 1313.4.

Sources: SB 3820 O.S. § 1313.4

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Change To Statute Of Limitations For Child Sexual Abuse Victims – 2017 Oklahoma Laws #8

child sexual abuse oklahomaThe statute of limitations for victims of child sexual abuse, exploitation, or incest is now the 45th birthday of the alleged victim. Previously, it was within two years of the alleged act or within two years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act or that the act caused the injury for which the claim was brought. Under the old statute, the time limit for commencing an action was tolled for a child until the child reached 18 years old or until five years after the perpetrator was released from jail or prison–whichever was later.

When an action against a perpetrator of child sexual abuse, exploitation, or incest must be brought by a victim in Oklahoma

Now, the action against the perpetrator must be commenced by the 45th birthday of the alleged victim. If the person committing the act of sexual abuse against a child was employed by an institution, agency, firm, business, corporation, or other public or private legal entity that owed a duty of care to the victim, or the accused and the child were engaged in some activity over which the legal entity had some degree of responsibility or control, the action must be brought against such employer or legal entity within two years; provided, that the time limit for commencement of an action pursuant to this law is tolled for a child until the child reaches the age of 18. No action may be brought against the alleged perpetrator or the estate of the alleged perpetrator after the death of such alleged perpetrator, unless the perpetrator was convicted of a crime of sexual abuse involving the claimant. An action pursuant to this law must be based upon objective verifiable evidence in order for the victim to recover damages for injuries suffered by reason of such sexual abuse, exploitation, or incest. The victim need not establish which act in a series of continuing sexual abuse incidents, exploitation incidents, or incest caused the injury complained of.

There is no longer a requirement for the evidence to include both proof that the victim had psychologically repressed the memory of the facts upon which the claim was predicated and that there was corroborating evidence that the sexual abuse, exploitation, or incest actually occurred.

HB 147 amended 12 O.S. § 95. This law went into effect on November 1, 2017.

Sources: 12 O.S. § 95HB 147

If you have been accused of child sexual abuse, exploitation, or incest,

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Military 21 & Older Can Carry Handgun Without Permit – Oklahoma Laws In 2017 #7

oklahoma handgun military

Active military personnel, members of the Reserve, and members of the National Guard who are 21 and older may now carry concealed or unconcealed handguns without a handgun permit. This includes members of the Guard and Reserve on drill status, Active Guard Reserves, and Military Technicians. The military ID card is considered a valid handgun license issued pursuant to the Oklahoma Self-Defense Act.

SB 35 modified 21 OS  §§ 1290.8, 1290.12, 1290.15, and 1290.26. It went into effect November 1, 2017. Succinctly, a member of any branch of the military in any military status does not have to take the training course.

What happens if you are arrested for violating Oklahoma’s law requiring the possession of a handgun license

A violation of this law is a misdemeanor. The maximum punishment for the first violation is in 30 days in the county jail, and the range of fine is $100–$250. On the second and subsequent violation, the range of punishment in the county jail is 30 days–3 months, and the range of fine is $250–$500.

Any second or subsequent violation of 21 O.S. § 1290.8 is grounds for the OSBI to suspend the handgun license for a period of six months. This is addition to any other penalty imposed.

Requirements to identify that you’re in possession of a concealed or unconcealed handgun in Oklahoma

It’s illegal to fail or refuse to identify the fact that you are in actual possession of a concealed or unconcealed handgun pursuant to the authority of the Oklahoma Self-Defense Act when you come into contact with any law enforcement officer during the course of any arrest, detainment, or routine traffic stop. The identification to the law enforcement officer must be made at the first opportunity. You are not required to identify yourself as a handgun licensee when no handgun is in your possession or in any vehicle in which you are driving or are a passenger. A violation of this provision misdemeanor. The maximum fine is $100, and the maximum punishment in the county jail is one year.

Any law enforcement officer who comes in contact with a person whose handgun license is suspended, revoked, or expired, or who is in possession of a handgun license that has not been lawfully issued to that person, must confiscate the license and return it to the OSBI for appropriate administrative proceedings against the licensee when the license is no longer needed as evidence in any criminal proceeding.

For more information on the requirements to carry a handgun in Oklahoma, check out my page detailing Oklahoma’s requirements to carry a handgun.

Sources: SB 35, 21 OS § 1290.8, 21 OS § 1290.12, 21 OS § 1290.15, & 21 OS § 1290.26

If you’ve been charged with illegally carrying a handgun,

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Minors Prohibited From Using Tanning Facilities – Oklahoma Laws In 2017 #6

oklahoma teen tanning bedIt’s now illegal for minors to use a tanning bed in a tanning salon. Any tanning facility or operator that violates this law will be subject to a civil penalty. Kids can still continue to get a spray tan with reckless abandon. SB 765 created 63 O.S. § 7302. It became effective November 1, 2017.

The owner of a “tanning facility” is required to post a notice that states all of the following:

  1. That it is unlawful for a tanning facility or operator to allow a person under 18 to use any tanning device;
  2. That a tanning facility or operator who violates the provisions of this law willbe subject to a civil penalty;
  3. That an individual may report a violation of one or more provisions of this act to the local law enforcement agency; and
  4. The health risks associated with tanning including, but not limited to, skin cancer, premature aging of skin, burns to the skin and adverse reactions to certain medications, foods and cosmetics.

A “tanning facility” is defined as “any location, place, area, structure or business that provides persons access to any tanning device, including tanning salons, health clubs, apartments and condominiums, regardless of whether a fee is charged for access to tanning equipment.”

Well, I’m glad our legislators have their priorities right. Why not leave this regulation up to the parents? Who cares if some teen wants to have a tanned body? I didn’t know there was such a great amount of bronzed high-schoolers these days that we needed to stop it through legislation. Newsflash to legislators: you can get a tan by just being outside. What’s next, a law to limit the amount of time teenagers can spend outside without sunscreen on?

If the government has infringed on your right to tan,

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Left Lane Only For Passing – 2017 Oklahoma Laws #5

oklahoma driving in left lane law

HB 2312 strengthened an existing law covering the restrictions on driving in the left lane. It’s now very clear that a vehicle cannot be driven in the left lane except when overtaking or passing another vehicle if the road is divided into four or more lanes. The law allows for driving in the left lane when traffic conditions or road configuration requires the use of the left lane to maintain safe traffic conditions.

This law has been in the news a lot. There are some pros and cons to it. Overall, I think it’s a good idea. I can’t stand people who just sit in the left lane when there is someone behind them who wants to go faster. It’s discourteous and leads to frustrated drivers. On the other hand, this gives law enforcement yet another reason to pull people over. I believe they still had this justification under the previous version of the law, but the new wording makes it easier for law enforcement to find reasonable suspicion of a traffic violation. I think that we should be looking to decrease the number of reasons law enforcement has to pull people over.

It appears that law enforcement will initially be just issuing warnings. It’s unclear how long this grace period is. Bottom line is … move over!!

This law went into effect and modified 47 O.S. § 11-309.

If you’ve been ticketed for driving in the left lane in Oklahoma,

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Sources:

Presentence Investigation Changes – New Oklahoma Laws in 2017 Pt 4

presentence investigation oklahomaThe law covering presentence investigations in Oklahoma changed on November 1, 2017. A presentence investigation in Oklahoma is something that’s done after a defendant pleads guilty to a felony. It’s supposed to help the judge determine an appropriate sentence. A presentence investigation is also referred to as a PSI.

The information obtained from the presentence investigation includes:

  •  A voluntary statement from each victim of the offense concerning the nature of the offense and the impact of the offense on the victim and the immediate family of the victim;
  • The amount of the loss suffered or incurred by the victim as a result of the criminal conduct of the offender
  • The age, marital status, living arrangements, financial obligations, income, family history. and education of the defendant;
  • Defendant’s prior juvenile and criminal records;
  • Defendant’s associations with other persons convicted of a felony offense;
  • Defendant’s social history;
  • Indications of a predisposition to violence or substance abuse;
  • Remorse or guilt about the offense or the harm to the victim; and
  • Job skills and employment history of the defendant.

HB 1324 made the following changes to 22 O.S. § 982:

  • It is now optional for the judge to require a defendant convicted of a violent felony offense to undergo a presentence investigation administered by the Department of Corrections.
  • The new maximum amount the Department of Corrections can charge for a presentence investigation is $500 (up from $250).
  • For defendants convicted of nonviolent offenses, a judge may order a presentence investigation be conducted by “a private provider or someone designated by the court.” The defendant in this situation must have a prior felony conviction. The maximum fee for this presentence investigation is $500.

The main effect this change in law has is the increased cost for a presentence investigation. Since the maximum fee is $500, you can be assured that anyone conducting this investigation will charge exactly $500. The other big impact this change will have is on nonviolent offenders, as they will most likely have to get an investigation through a private provider.

If you’ve been charged with a crime in Oklahoma,

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Sources: