Tulsa Attorney BlogRomeo & Juliet Defense: OCCA Say Burden’s on the Defendant

Romeo & Juliet Laws Shield Youthful Intimacy

Video Transcribed: Romeo and Juliet defense, Oklahoma Court of Criminal Appeals says that the burden is on the defendant. I’m an attorney in Tulsa James Wirth, and we’ve got a new case out, a relatively new from the Oklahoma Court of Criminal Appeals. It’s Oklahoma Vs Prosser. That’s S2020-879. And that is a case where defendant Joshua Prosser was charged with statutory rape. Statutory rape, meaning that they alleged that the person who is the victim in the case was not of sufficient age to be able to consent under Oklahoma law, but otherwise it was a consensual encounter in this case.

Oklahoma law has a Romeo and Juliet provision, which specifically provides that for those that are under the age of 18, it is not statutory rape if both parties are under the age of 18. What it says is, and this is title 21, section 1112 says, “No person can be convicted of rape on account of an act of sexual intercourse with anyone over the age of 14 with his or her consent, unless the person was over the age of 18 at the time the crime occurred.”

So this is written into the law and it’s to protect where both parties are under the age of 18, otherwise, both parties could be charged potentially with rape. So you’ve got your victim who was under the age of 18 that consented to it, and you have your perpetrator who’s also under the age of 18. Well, there’s no distinguishment between the two, then they could each be charged with raping the other. So there’s a Romeo and Juliet provision to prevent anybody under the age of 18 from being charged with statutory rape.

So the question becomes is that, that the defendant is over the age of 18, is that an element of the offense that the state is required to prove, or is it an affirmative defense that the defendant is required to approve? And in this case in Rogers County, it went for a preliminary hearing, and the state did not show any proof that the defendant was over the age of 18.

attorney in OklahomaThe defendant raised a demur to that, which was ultimately granted by the magistrate. It was appealed to the district judge. The district judge in Rogers County as well found the state failed to prove that the defendant was over the age of 18, which is required to get around the Romeo and Juliet defense. And that case was dismissed.

The state then appealed to the Oklahoma Court of Criminal Appeals. And the Oklahoma Court of Criminal Appeals found that the defendant being over the age of 18 is not an element of the offense that the state is required to prove.

It is an affirmative offense or I’m sorry, the defense that the defendant is required to prove. And defendants do not prove their affirmative defenses at the preliminary hearing. That’s actually an issue for the jury or judge at trial. So what that means is that they overturn the Rogers County judge.

These charges are now going forward again. And the defendant will get to present that as a defense at a jury to show that he cannot be convicted if indeed he is under the age of 18 or was under the age of 18 at the time that this occurred.

So, that is a big deal. What that means is that minors who engaged in consensual sexual activity can’t actually be thrown in jail, or at least in juvenile detention, and held, and then charged for raping their consensual partner, even though this defense applies, because they’re the ones that have to meet the burden of proving that, not in the early stages of the cases for probable cause, but actually at the trial.

So I mean, it’s unfortunate for somebody who potentially can never be convicted that the burden is on the defendant to prove their innocence in these types of cases, but that is what we have from the Oklahoma Court of Criminal Appeals as of June 24th of 2021. If you’ve got any questions about this case or other circumstances related to criminal procedure, criminal law, you’re going to want to talk to an attorney privately, confidentially about that. To get that schedule with somebody at my office, you can go online to makelaweasy.com.

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