The Orifice Defense: Why Poorly Written Laws Lead to "Technicalities" for the Criminally Accused

Everyone has heard it before: some horrible human facing criminal allegations, who is most likely guilty and would probably face jail time if convicted, gets the charges dismissed based on a "technicality" and walks free.

But what does it really mean when a criminal defendant goes free on a legal technicality?

Well, it means the legislative branch has done a poor job of writing a law, and the judicial branch has basically called them out for it, more or less. Sure, it results in embarrassment for the politicians, but sometimes it takes embarrassment on a grand scale to make a change. Legislators aren't going to simply stop writing bad laws on their own.

Some states, like Oklahoma, are having a hard time learning that lesson:

  • Oklahoma is in a budget failure that has crippled public education and DHS services, yet despite billions of dollars in cuts to vital and already underfunded agencies, the legislature approved a 125 million bond to repair and renovate the state capitol.
  • Although Oklahoma is clearly struggling with much larger issues, the legislature filed a measure to ask Congress to impeach President Barack Obama over his directive for schools to allow students to use the restroom facilities of the gender with which they identify.
  • Both the House and Senate passed a bill to make it a felony for a physician to perform an abortion in Oklahoma and to revoke the medical license of any doctor who performed the procedure. The bill even added language regarding state funding for fighting a constitutional challenge of the new law. Fallin, herself a proponent of anti-abortion legislation, thankfully refused to sign, saying the law would never withstand a constitutional challenge (she's correct).

And while the Oklahoma legislature has many Oklahomans hiding their faces in shame this year, at least one public humiliation has prompted some positive change.

It all started one April night in 2015, when a 17-year-old boy volunteered to give a heavily intoxicated 16-year-old girl a ride home. By the time the girl arrived however, she was unconscious and unable to be revived. She was transported to a hospital, regaining consciousness as medical staff performed a sexual assault exam. The boy's DNA was discovered near the girl's mouth.

The boy told investigators that the girl consented to oral sex; the girl said she remembered nothing about the night.

Because the girl was so heavily intoxicated that she could not have provided legal consent, the boy was charged with forcible sodomy.

However, while Oklahoma law says that rape occurs when a person is "unconscious of the nature of the act" and unable to knowingly consent to sexual intercourse, it makes no similar provision for intoxication in the state's forcible sodomy law.

A criminal defense lawyer challenged the application of the forcible sodomy law as written, and the trial court judge dismissed the case against the teen. Prosecutors appealed to the Oklahoma Court of Criminal Appeals. The appeals court upheld the decision, saying:


"The legislature's inclusion of an intoxication circumstance for Rape . . . is not found in the five very specific requirements for commission of the crime of Forcible Sodomy . . . . [W]e will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language."

People in Oklahoma and around the nation were shocked--in Oklahoma, it's not "forcible" to engage in oral sex with a person who is unconscious due to intoxication?! Sometimes poor laws lead to poor results.

Although the appeals court's decision is unpopular, it is, in fact, the correct ruling. The court is not at liberty to expand the law the state legislature writes into place.

The district attorney who filed the sodomy charge against the teen called this technicality "the orifice defense," saying that if the teen had sexual intercourse with the unconscious girl, he would have been charged with rape--but since it was oral sex, his charge was dropped.

Now, this does not mean the boy did not commit a crime; it means that the district attorney in the case charged him with the wrong crime, and the law the prosecution relied on instead was poorly written. Oklahoma's sexual battery statute, by contrast, would have allowed prosecution of the teen for non-consensual sexual contact. He would have faced a maximum sentence of 10 years in prison.

Regardless, the case has prompted a positive change in legislation to keep the state's forcible sodomy laws in line with the state's rape laws (and common sense in general). Language was added to an existing bill that would include unconsciousness and intoxication as criteria under the state's forcible sodomy law. House Bill 2398 was also amended to provide a definition of sexual consent:


The term "consent" means the affirmative, unambiguous and voluntary agreement to engage in a specific sexual activity during a sexual encounter which can be revoked at any time. Consent cannot be:
1. Given by an individual who:
a. is asleep or is mentally or physically incapacitated either through the effect of drugs or alcohol or for any other reason, or
b. is under duress, threat, coercion or force; or

2. Inferred under circumstances in which consent is not clear including, but not limited to:
a. the absence of an individual saying "no" or "stop", or
b. the existence of a prior or current relationship or sexual activity.

The bill was signed into law by Governor Mary Fallin on June 6, 2016, less than 75 days after the decision by the appeals court. Legislators jumped directly into action, and the Governor quickly followed suit.

Sure, it gives me one less "technicality" to argue in my clients' defense of these specific facts should they arise in the future, but that is a good thing. Now the prohibition is written law. Now there is no longer a "loophole" for someone to exploit. No one will escape punishment in the same scenario due to some technicality.

So, the next time you hear about a criminal defense attorney getting his client's charges dismissed because of a "technicality" that is really just the result of a poorly written law, please remember that we defense attorneys aren't just slime-balls running around helping guilty criminals walk free.

We are the ones that make sure the laws meant to protect you are actually written well enough to keep you safe.