A Criminal Appeals Lawyer Explains When Rape is Not a Crime

The Oklahoma Court of Criminal Appeals was right to uphold the dismissal of a highly controversial rape prosecution declares criminal appeals lawyer John Helms.

At the end of April, Oklahoma’s highest criminal court upheld the dismissal of a forcible sodomy prosecution involving oral sex and a victim who was too intoxicated to consent. This decision has drawn outrage from Oklahoma legislators, advocacy groups, and members of the public. But the court was right, and the Oklahoma legislature has only itself to blame says John Helms criminal appeals lawyer.

Oklahoma’s current forcible sodomy law applies when the defendant uses force to make someone participate in oral sex. It does not apply when no force is used, but the victim is too intoxicated to consent. Should this be a crime? Of course. But it is not forcible sodomy under the law that the Oklahoma legislature passed. The Oklahoma court was therefore absolutely correct to say that it cannot rewrite the law–only the Oklahoma legislature can. And it is the job of the criminal appeals attorney to understand the nuances of the law and to take advantage of flaws in the way the laws are written to provide the strongest defense possible for their clients.

Predictably, the politician who was most responsible for the law blamed the courts. Other Oklahoma legislators will surely chime in.

This is the height of hypocrisy and irony. Oklahoma has one of the most conservative state legislatures in the country. These are the kinds of politicians who rail against “judicial activism” and who proclaim that judges should only “apply” the law, use “strict construction,” and not “rewrite” it. But when an Oklahoma court does exactly that, they blame the court for the law THEY wrote.

The Oklahoma legislature is apparently acting quickly to close this loophole, and hopefully they will do it soon. In this instance, though, the courts were correct.

I successfully made a similar argument in an appeal from a bribery conviction in state court in Texas. Texas Lawyer magazine named me appellate lawyer of the week for the State of Texas because of it. I argued, and the appeals court agreed, that even if what my client did was wrong, it was not bribery according to the plain language of the Texas bribery law. Because my client was convicted of only bribery and crimes based on bribery, the court of appeals reversed his convictions and held that he should be acquitted of all charges.

If you, a family member or someone you know has been charged with a crime or have been convicted and need help with an appeal in the Dallas area, contact Dallas criminal appeal lawyer John Helms at (214) 666-8010 or fill out the online contact form. You can discuss your case, how the law may apply and your best legal options to protect your rights and freedom.