Amendment to strengthen rape by instrumentation law awaits Gov. Mary Fallin’s signature

Gov. Mary Fallin is scheduled Tuesday to take action on a bill approved by legislators last week that would strengthen laws regarding what constitutes rape by instrumentation.

The bill’s author says the amended law would better protect victims of sex crimes and avoid “international embarrassment” due to archaic language.

Currently, the elements of Oklahoma’s first-degree rape by instrumentation law state that the act, to be legally considered a first-degree offense, must result in a victim suffering bodily harm. But House Bill 1005 by Rep. Scott Biggs, R-Chickasha, removed that requirement and also added a clause that means a person can be prosecuted regardless of his or her age or that of the victim.

The measure, sponsored in the Senate by Sen. AJ Griffin, R-Guthrie, passed unanimously in both houses April 25, but Fallin hasn’t yet signed it into law. Michael McNutt, a spokesman for Fallin, said Monday night that HB 1005, which would take effect Nov. 1, is on the list for the governor to decide on Tuesday, the deadline.

“We’ve already been the laughingstock of the country with some of our laws, and we don’t need to continue that pattern,” Biggs told the Tulsa World. The amendment “eliminates some of the breakdowns of these assaults and just says ‘rape is rape.’”

Tulsa County made international news last year after the previous language of sodomy laws resulted in the Oklahoma Court of Criminal Appeals deciding the law didn’t apply to a victim who was intoxicated or unconscious. The statute used in that incident was amended last summer, and HB 1127, which passed in both houses this session, amends the definition of consent to sexual acts in jury instructions.

Biggs said a recent example of inadequate rape laws in Tulsa County is the case of 19-year-old Luis Alberto Molina, who is due to be extradited to Oklahoma from Texas to face two dozen charges, including sexual battery and second-degree rape by instrumentation. He said the reported victims in the Molina case are among those who could be benefited by the legislation.

A probable cause affidavit states that police discovered a video recording of an unconscious woman being raped, purportedly by Molina, with a cigarette. Under existing law, Biggs said Molina “could only get up to 15 years for what happened to her, while everyone else could (see him) have life for what he did to them.”

Ben Fu, a Tulsa attorney who once supervised the Special Victims Unit of the Tulsa County District Attorney’s Office, said it’s important for Fallin to sign the law — rather than simply decide not to take action — because “the Legislature has pretty loudly spoken” through its votes.

Fu received recognition from Fallin last month for his work with victims of sex crimes and said he hopes she continues to pay attention to the issue.

The current law “is basically saying, ‘I’m sorry but you weren’t injured enough,” Fu said. “The concept of any attorney having to talk about the issue of injury specifically to a jury is shocking and offensive.”

Fu said rape by instrumentation cases need tougher sentences because “in many respects, they give you a mindset into some dangerous predators” and their mindset at the time of an assault.

”To those who would be concerned about prison population, these aren’t the type of individuals you’re talking about when we discuss over-incarceration,” he said.

First-degree rape by instrumentation is punishable by up to life in prison; second-degree carries a maximum of 15 years.

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