Tulsa Attorney Blog10th Circuit Says No Rounding For Age of Consent Law

Days Count in Statutory Rape Age Differences

age of consent in OklahomaHow would you interpret a statutory rape law that permits sexual contact between an 18 year old and someone four years younger? Does it mean an 18 year old and a 14 year old, or someone born within 48 months of the day the 18 year old was born?

The United States Court of Appeals for the 10th Circuit has determined exemptions in a federal age of sexual consent law for youths close to the same age are calculated according to the exact number of days between their birthdays.

By the court’s math, an 18 year old can be more than four years older than a 14 year old.

The ruling in U.S. v Black (10th Cir. 2015) applies specifically to a sex offender registration case that started in a tribal court – in Indian Country according to the court’s language. The court joined the 3rd Circuit in adopting a standard that counts days of age rather than differences in age as commonly expressed in years.

Court: Four Years Means 1,461 Days

The federal Sex Offender Registration and Notification Act (SORNA) exempts from registration people convicted of sex offenses widely known as statutory rape involving a person less than four years older than a victim at least 13 of age. 42 U.S.C. § 16911(5)(C) (2012). In the 10th Circuit case, an 18 year old had been convicted of consensual sexual activity with a 14 year old.

Subsequently convicted of violating SORNA, the man appealed. He argued the younger person in his case was within four years of his age when “figured by subtracting the integers representing completed years of life,” as the court explained the appellant’s math.

In a layperson’s terms, that means 18 – 14 = 4.

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U.S. v Black (10th Cir. 2015)

The 10th Circuit affirmed the U.S. District Court decision. The court cited the 3rd Circuit in United States v. Brown, 740 F.3d 145, 149 (3d Cir. 2014), saying “we conclude ‘not more than for years older than the victim’ means no more than 1461 days or 48 months separate the birthdays of the sex offender and the victim.”

Again in a layperson’s terms, the court said four years is 365 X 4 plus a day for leap year: 1,461 days.

Because federal statutory rape law uses similar language, the 10th Circuit decision sets the standard where sexual abuse of a minor is alleged under federal law – in Oklahoma and in other 10th Circuit states (Colorado, Kansas, New Mexico, Utah and Wyoming).

A Supreme Court appeal could change the standard, but for now, we must consider how the ruling affects statutory rape charges in Oklahoma.

Without a reason to reach a different conclusion, state courts often follow federal court interpretations where the meaning of a law can be unclear. Oklahoma’s age of consent law uses similar language as the federal law.

What is Age of Consent in Oklahoma?

Under Oklahoma law and federal law, most sexual contact with a person under 16 years of age is illegal. Federal law provides exemptions for consensual contact with someone no more than four years younger and between 12 to 16 years of age. 18 U.S.C. § 2243(a) (2012). Oklahoma age of consent law sets a more narrow limit – only three years age difference is allowed in Oklahoma. Okla. Stat. tit. 21 § 1123(A).

Reasonable caution suggests a person would best err toward the recently established 10th Circuit standard in any proactive decision involving sexual contact between youths about three years apart in age. Until the matter is settled by Oklahoma courts, however, the question might still be offered on appeal.

It is noteworthy that not all age-difference clauses in Oklahoma sex offense laws rely on references to “younger than” or “older than.” Statutory rape – or consensual sexual contact – with a person under the age of 14 can be charged as first degree rape, unless the accused is under the age of 18. Okla. Stat. tit. 21 § 1112.

In the Oklahoma first-degree rape law, the passing of the younger person’s 14th birthday and the older person’s 18th birthday control who can be charged, regardless if they were born 1,095 apart or 1,460 days apart.

To put it differently, a person one day short of their 19th birthday cannot be convicted of first degree rape, for consensual sex with a person who just turned 14. The person can be charged, however, with led and indecent acts to a child under 16, under which the allowable age difference is only three years and three years might mean 1095 days.

Another place Oklahoma law definitely counts the years and not the days of age difference involves teachers illegal sexual conduct with students. Codified under a section titled “Lewd and Indecent Proposals or Acts to Child under 16” the law addresses sex with students as old as 20 years of age. A teacher who is 18 years of age might be charged under that seduction of children law for sexual contact with an older student – as old as 20. Okla. Stat. tit. 21 § 1123(B)(3).

Free Consultation: Tulsa Statutory Rape Attorney

As in all legal matters, details count when a person is charged with a sex crime for consensual sex acts. If you are charged with statutory rape, or failure to register as a sex offender, a Tulsa criminal lawyer can help you  understand  your options.

For a free consultation with a  Tulsa defense attorney, contact Wirth Law Office at (918) 879-1681 or send a question via the form at the top of this page.

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