OUJI-CR 4-124

RAPE IN THE SECOND DEGREE - ELEMENTS

No person may be convicted of rape in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, sexual intercourse;

Second, with a person who is not the spouse of the defendant [and who may be of the same sex as the defendant];

[Third, where the victim was under the age of sixteen].

OR

[Third, where the victim was under the belief induced by the defendant that the victim was having intercourse with his/her spouse].

OR

[Third, where the victim was under the legal custody/supervision;

Fourth, of a (state/federal agency)/county/municipality/(political subdivision); and

Fifth, the defendant was an employee/(employee of a [subcontractor of a] contractor of)/the (state/federal agency)/county/municipality/(political subdivision) that exercised authority over the victim;].

OR

[Third, where the victim was between sixteen and twenty years of age;

Fourth, the victim was a student/(under the legal custody/supervision) of a/an (elementary/secondary school)/junior high)/high/(public vocational) school;

Fifth, the defendant was eighteen years of age or older; and

Sixth, the defendant was an employee of a school system].

OR

Third, where the victim was nineteen years of age or younger; and

Fourth, in the legal custody of a (state/federal agency)/(tribal court); and

Fifth, the defendant was a (foster parent)/(foster parent applicant).

OR

[Third, where the victim was a student at a secondary school, was concurrently enrolled at an institution of higher education, and engaged in sexual intercourse with the defendant who was an employee of the institution of higher education of which the victim was enrolled. An "employee of an institution of higher education" means (faculty/(adjunct faculty) /instructors/volunteer)/(an employee of a business contracting with an institution of higher education who may exercise, at any time, institutional authority over the victim). [An employee of an institution of higher education shall not include an enrolled student who was not more than three (3) years of age or older than the concurrently enrolled student and who was employed or volunteering, in any capacity, for the institution of higher education.]

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

Statutory Authority: 21 O.S. Supp. 2022, § 1111, 21 O.S. 2021, § 1114.

Notes on Use

The trial court should read the bracketed language in the second element only if the defendant was of the same sex as the victim. In the third element the trial court should read only the alternative (or alternatives) that is (or are) supported by the evidence. The trial court should read the bracketed language in the last sentence of the last alternative only if the defendant was not more than three years older than the victim.

Committee Comments

In all instances, the statutory age under which a victim is legally incapable of consenting to sexual intercourse is 16, section 1111(A)(l ). If a defense under section 1112 is unavailable, sexual intercourse with a person under 16 years of age is at least rape in the second degree, although if the victim is under 14 years of age, rape in the first degree is a possible charge. Even if the proof establishes that the victim is 13 years of age, a prosecution and conviction for rape in the second degree is proper because rape in the second degree is a lesser included offense of rape in the first degree. Hence, the first alternative in the third element simply indicates a victim under 16 years of age.

The other alternatives in the third element constitute, in fact or by law, sexual intercourse without the consent of the victim.

The age of the defendant is not an element of the crime of second-degree rape. If the prosecutor is uncertain whether it can be proved that the defendant has attained the age of 18, he/she can charge the defendant with second-degree rape and the conviction would be upheld although it is established that the defendant is over 18. Brasel v. State, 1929 OK CR 216, 291 P. 807, 48 Okl. Cr. 403. The age of the defendant may become relevant as a defense, however, under section 1112, if the victim is over 14 years of age and consents, and the defendant is under 18 years of age.

Oklahoma's rape shield law, 12 O.S. 2021, § 2412, limits the use of evidence of the sexual behavior of the victim in prosecutions for sexual offenses.

(2024 Supp.)