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Tulsa World

Officials seek way to close rape loophole

by: NICOLE MARSHALL World Staff Writer
4/13/2008 12:00 AM

An oversight in state law allows less severe penalties for a rapist who drugs his victim into unconsciousness before the attack, according to Tulsa law enforcement officials.

But after a recent decision in the case of a former nurse who is accused of raping a drugged hospital patient, police and prosecutors are seeking to change the law.

“Why is a victim any less of a victim if she has been rendered unconscious and unable to defend herself?” Tulsa Police Sgt. Gary Stansill asked.

Stansill spoke with Rep. Pam Peterson, R-Tulsa, about amending the state law after a former St. Francis Hospital nurse accused of raping a patient was bound over for trial on a reduced charge of second-degree rape.

Olayinka Osifeso, 45, had been charged with first-degree rape, but a judge found that evidence presented during a preliminary hearing was sufficient to support only a second-degree rape charge.

Osifeso, through his attorney, maintains his innocence.

District Attorney Tim Harris said Osifeso was charged with first-degree rape because state law deems it appropriate “where the victim was incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.”

However, legal debate during Osifeso’s preliminary hearing revealed that being drugged and unconscious does not fit the definition of “unsoundness of mind.”

Harris said that after further review, prosecutors agreed that Oklahoma law classifies the circumstances in the case as second-degree rape.

The state’s definition of rape includes cases “where a victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit.”

It also includes cases “where the victim is at the time unconscious of the nature of the act and this fact is known to the accused.”

However, those criteria are not included in the definition of first-degree rape, and that, by default, makes them second-degree rape.

A defendant who is convicted of first-degree rape faces the possibility of life in prison.

A conviction on the second-degree charge, however, would carry a 15-year maximum sentence, Harris said.

“If you are incoherent because a narcotic was given to you, it takes away the ability to consent. It implies that any amount of force used to accomplish the act is unlawful because the victim was not in the state of mind to consent,” Harris said prosecutors believe.

He said he hopes police and prosecutors can work together with legislators to get the law amended.

“When we find things like this that don’t make sense, let’s all join together and make it make sense,” Harris said.

Peterson said she is interested in changing the law to close the loophole.

“I am very interested in pursuing possible legislation next session, (but) it is too late in the process for this session,” she said.

Peterson was the House author of a bill that allows people to be prosecuted if they use electronic equipment such as cell phone cameras to capture images of people’s private areas in public places. The “peeping Tom” bill is awaiting the governor’s signature.

“A person in a hospital bed should feel safe. Just because a person is unconscious in a hospital bed does not change anything. Rape is rape,” Peterson said.

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Nicole Marshall 581-8459
nicole.marshall@ tulsaworld. com

CHARGED
Olayinka Osifeso: The nurse is now facing a second-degree rape charge for allegedly raping a patient at St. Francis Hospital.

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