OUJI-CR 4-127

RAPE BY INSTRUMENTATION

IN THE SECOND DEGREE - ELEMENTS

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

First, the person penetrated the anus/vagina;

Second, of any victim;

Third, with (an inanimate object)/(a part of the human body other than the penis);

Fourth, without the victim's consent;

Fifth, [List the Circumstance(s) Specified in Section 1111 Which Exist in This Case].

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

OR

First, the person was eighteen years of age or older; and

Second, the person was an employee of the victim's school system;

Third, penetrated the anus/vagina;

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

Fifth, who was at least sixteen years of age and less than twenty years of age;

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

OR

First, the defendant was an employee/(employee of a contractor of)/the (state/federal agency)/county/ municipality/(political subdivision); and

Second, who penetrated the anus/vagina;

Third, of a person who was under the legal custody/supervision;

Fourth, of the (state/federal agency)/county/municipality/(political subdivision) that employed the defendant;

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

OR

First, the defendant was an (foster parent)/(foster parent applicant);

Second, who penetrated the anus/vagina;

Third, of a person who was nineteen years of age or younger;

Fourth, when the person was in the legal custody of a (state/federal agency)/(tribal court).

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

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Statutory Authority: 21 O.S. Supp. 2015, §  1111.1, 21 O.S. 2011, § §  1113, 1114.

Committee Comments

The crime of rape by instrumentation 21 O.S. Supp. 2015, § 1111.1, does not fall within the common law definition of rape. R. Perkins, Criminal Law 152 (2d ed. 1969). Before section 1111.1 was adopted in 1981, the acts constituting this crime would have fallen within the assault and battery crimes. Since section 1111.1 creates a specific crime covering acts falling within its purview, the State should charge under this specific statute rather than the general assault and battery statutes. 21 O.S. 2011, § 11.

Most elements of rape by instrumentation are self-explanatory. In reference to the first element, note that penetration of the mouth is not included within this offense. Such a forcible act would, however, be covered by the crime against nature/forcible sodomy statutes, 21 O.S. 2011, §§ 886, 888. "Any sexual penetration, however slight, is sufficient to complete this crime." 21 O.S. 2011, § 1113.

The second element, "of another person," means just what it states. Under section 1111.1, spousal "rape" is specifically recognized. The Commission has concluded that the language "of another person," when used in conjunction with "penetration of the anus or vagina," means that a male can "rape" a male and a female can "rape" a female by instrumentation.