OUJI-CR 4-123


In order to be capable of giving legal consent to a sexual act, a person must be capable of understanding the act, its nature and possible consequences.


Statutory Authority: 21 O.S. 2011, § 1111(A)(2).

Committee Comments

Section 1111(A)(2) of title 21 was amended in 1981 to substitute the phrase "mental illness" for "lunacy." Prior to 1981, a woman who suffered from "lunacy or other unsoundness of mind" was deemed legally incapable of consenting to sexual intercourse. Therefore, intercourse with such a person was deemed to be against her will and thus, by force. In Adams v. State, 1911 OK CR 87, 114 P. 347, 5 Okl. Cr. 347, the Court of Criminal Appeals held that upon proof of such a condition the law conclusively presumes that the sexual intercourse was by force and violence. See also Hacker v. State, 1941 OK CR 145, 118 P.2d 408, 73 Okl. Cr. 119; Hyde v. State, 1923 OK CR 332, 221 P. 787, 26 Okl. Cr. 69. There is an excellent possibility that the word "lunacy" was changed to the phrase "mental illness" because the phrase simply sounds better. The problem that could be created is best established by an evaluation of the Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association. This reference cites over 100 mental illnesses which might well fall within the statutory definition of 21 O.S. 2011, § 1111(A)(2). These would include such illnesses as a severe state of temporary depression.

The Committee has concluded that the legislative intent was not to substantially change the prior meaning of section 1111(A)(2). It is the opinion of the Commission that the term "mental illness" in OUJI-CR 4-120 can be defined by the use of 43A O.S. 2011 § 1-103(3).

Whether a victim falls within the provision of being "incapable through mental illness or any other unsoundness of mind" is an issue of fact to be determined by the jury or trier of the facts. This determination will probably hinge on the particular evidence presented in the case. However, certain characteristics have been more commonly associated with "lunacy or other unsoundness of mind" than others. These characteristics will probably continue to have relevance under the amended section 1111(A)(2). Characteristics commonly associated with "lunacy or other unsoundness of mind" include: (1) testimony by individuals in frequent contact with the victim that he/she is "feeble minded" or "has the mind of a child," Hacker, supra; Adams, supra; (2) testimony from medical experts or relatives that the victim is suffering from a recognized mental disease which is associated with an inability to make decisions; Hacker, supra; Hyde, supra; (3) evidence which shows the victim does not feel guilty about having sex; (4) evidence which shows the inability to understand and comprehend the act of sexual intercourse; (5) and, evidence which shows the inability to understand and comprehend the potentially unfortunate consequences of sex, such as venereal disease and pregnancy.

Probably the chief characteristic to be established would be that the victim does not have an understanding of the sexual act, its nature, and its possible consequences.

The Court of Criminal Appeals apparently has never addressed the issue of whether the defendant must have an awareness of the victim's unsoundness of mind. Other jurisdictions which have similar statutes have held that it is not necessary for the State to prove that the defendant knew the victim was of such unsoundness of mind as to be incapable of consenting to sexual intercourse. See State v. Dombroski, 176 N.W. 985 (Minn. 1920); State v. Meyer, 226 P.2d 204 (Wash. 1951).

In addition to the "unsoundness of mind" classification, the third element lists two other kinds of sexual intercourse which qualify for prosecution under rape in the first degree. These are: intercourse when the victim is under 14 years of age; and, the rape is accomplished by means of force, violence, or threats of force or violence with apparent power to carry out the threat. Intercourse in these instances is either in fact, or by law, without the consent of the victim.

Age refers to chronological age, not mental age. Hacker, supra. Although no Oklahoma case has decided the question, a victim apparently is no longer under the age of 14 at the moment he/she becomes 14. Cf. Application of Smith, 1960 OK CR 41, 351 P.2d 1076 (rape committed by male over age of 18 upon female under 14; the 18th birthday is the drawing line, and the first moment of the 18th year constitutes him over 18). Moreover, it is no defense to a prosecution for rape that the defendant does not know that the person with whom he/she has sexual intercourse is under the age of consent. Reid v. State, 1955 OK CR 106, 290 P.2d 775; Law v. State, 1950 OK CR 143, 224 P.2d 278, 92 Okl. Cr. 444 (1950).

At one time persons under the age of eighteen could not be charged with rape, but the rape statutes were amended in 1981 to permit prosecution of persons under eighteen years of age who use force. For a discussion of this change, see Highsaw v. State, 1988 Ok CR 128, ¶ ¶ 2-3, 758 P.2d 336, 337-38.

The former requirement that the victim must have offered resistance to force or threats of great bodily harm was removed from section 1111 of title 21 in 1983. When the rape is alleged to have occurred as a result of threats with the apparent power of execution, the State must prove both that the defendant made threats and that the victim believed the threats would be carried out if he/she did not submit. Barrett v. State, 1978 OK CR 6, 573 P.2d 1221; Wines v. State, 1912 OK CR 201, 124 P. 466, 7 Okl. Cr. 450.

The State must allege and prove that the person with whom the accused had sexual intercourse was not the spouse of the defendant, unless the accused is being prosecuted for spousal rape under 21 O.S. 2011, § 1111(B). Emyahtubby v. State, 1918 OK CR 8, 169 P. 1124, 14 Okl. Cr. 213. Proof that the victim was not the defendant's spouse may consist of the testimony from the victim or evidence that the defendant was married to another person. See Phillips v. State, 1988 OK CR 103, ¶ 20, 756 P.2d 604, 610 (victim's testimony that she never met the defendant before he attacked her, that the sexual intercourse was accomplished with a knife and a gun, and that she was severely cut during the rape was sufficient to establish that the victim was not the defendant's spouse); Blackwell v. State, 1983 OK CR 51 ¶ 14, 663 P.2d 12, 16 (testimony at trial established that the defendant was married to another woman).

2013 Supp.