OUJI-CR 4-128
FORCIBLE SODOMY -- ELEMENTS
No person may be convicted of forcible oral sodomy unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, penetration;
Second, of the mouth/vagina of the defendant/victim;
Third, by the mouth/penis of the defendant/victim;
[Fourth, which is accomplished by means of force or violence, or threats of force or violence that are accompanied by the apparent power of execution.]
You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.
OR
[Fourth, by a person over the age of eighteen on a child under the age of sixteen.]
You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.
OR
[Fourth, committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent].
You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.
OR
[Fourth, committed by a state/county/municipal/ (political subdivision) employee/contractor/[employee of a [subcontractor of a] contractor of (the state)/ (a county/municipality/(political subdivision of Oklahoma)] upon a person who was under the legal custody, supervision or authority of a (state agency)/county/ municipality/(political subdivision) of Oklahoma.
You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.
OR
[Fourth, where the victim was at least sixteen but less than twenty years of age;
Fifth, the victim was a student of a (secondary school)/(junior high}/ high/(public vocational) school;
Sixth, the defendant was eighteen years of age or older; and
Seventh, the defendant was an employee of the victim's school system].
You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.
[Fourth, where the victim was a student at a secondary school and was concurrently enrolled at an institution of higher education; and
Fifth, the defendant 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.
OR
[Fourth, where the victim was at the time unconscious of the nature of the act and this fact was/(should have been) known by the defendant].
You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.
[Fourth, where the victim was intoxicated by a/an narcotic /(anesthetic agent);
[Fifth, (given by)/(with the knowledge of) the defendant;
[Sixth, as a means of forcing the victim to submit].
You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.
Statutory Authority: 21 O.S. 2021 & Supp. 2022, §§ 886 - 888.
Notes on Use
This instruction is intended for use in forcible oral sodomy cases under 21 O.S. 2022, § 888. It does not cover forcible anal sodomy, which constitutes the crime of rape and is covered by OUJI-CR 4-119 through 4-127.
The trial court should select the Fourth Element that is supported by the evidence. The Fourth Element should not be included for prosecutions under 21 O.S. 2021, § 886.
The trial judge should pay particular attention to making sure the Second and Third Elements conform to the evidence at trial. In Collins v. State, 2009 OK CR 32 n.11, 223 P.3d 1014, 1018 n.11, the Court of Criminal Appeals stated that:
[I]n cases involving separate counts of forcible oral sodomy, where the crimes alleged involve different factual theories, it is advisable to instruct the jury with separate instructions. In particular, such instructions should make clear whether the crime alleged is forcing the victim to perform oral sex on the perpetrator (penetration of the mouth of the victim by the penis of the defendant) or forcing the victim to endure oral sex performed by the perpetrator (penetration of the vagina of the victim by the mouth of the defendant).
In addition, in the Second and Third Elements, the trial judge should not select the options of penetration of the vagina of the victim by the penis of the defendant, because that would constitute rape, and the appropriate instruction for rape should be used instead.
Committee Comments
Oklahoma has two sodomy statutes, 21 O.S. 2021, §§ 886, 888. Force is not an element of sodomy under 21 O.S. 2021, § 886. Hinkle v. State, 1989 OK CR 4, ¶¶ 4-5, 771 P.2d 232, 233. Proof of force is required under 21 O.S. Supp. 2022, § 888, however, unless the victim was under 16 years of age, unconscious, intoxicated,ormentally ill, or the sodomy was committed by a state employee or contractor upon a person in the custody of a political subdivision of the State, or a student at a secondary school.
Section 886 has been held not to be unconstitutionally vague. Golden v. State, 1985 OK CR 9, ¶ 4, 695 P.2d 6, 7. However, in Post v. State, 1986 OK CR 30, ¶¶ 11-12, 715 P.2d 1105, 1109-10, the Oklahoma Court of Criminal Appeals declared it unconstitutional as violative of the right to privacy if applied to private consensual heterosexual activity. Accordingly, the jury should receive an instruction on the defense of consent in such cases if there is evidence of consent presented. Hinkle v. State, 1989 OK CR 4, ¶¶ 4-5, 771 P.2d 232, 233. In Garcia v. State, 1995 OK CR 85, ¶ 4, 904 P.2d 144, 145, the Court of Criminal Appeals ruled that it was error for the trial court to give an instruction for non-forcible sodomy (21 O.S. 2021, § 886) as a lesser included offense of forcible sodomy (21 O.S. 2021, § 888), where the charge involved heterosexual activity and the defendant raised the defense of consent.
Penetration is required under 21 O.S. 2021, § 887. Salyers v. State, 1988 OK CR 88, ¶ 7, 755 P.2d 97, 100. Corroboration of the victim's testimony is not required unless "the victim's testimony is so incredible or has been so thoroughly impeached that a reviewing court must say that the testimony is clearly unworthy of belief." Salyer v. State, 1999 OK CR 184, ¶ 22, 761 P.2d 890, 895.
(2024 Supp.)