First Degree Sodomy

3. Deviant sexual intercourse with a person was under the age of 12 when the offender is 16 or older

The third way the crime of sodomy in the first occurs when someone is over the age of 16 has deviant sexual intercourse with a person who was under the age of 12. Thus, if a 17-year-old babysitter performs oral sex on the 11-year-old boy she is babysitting, she has committed the crime of sodomy. Similarly, this crime would occur if an 87-year-old man performed oral sex on a child under 12.

In all criminal cases, the specific defense depends on a combination of undisputed facts, issues that are in dispute, and legal issues.

There are a number of defenses commonly seen in sodomy cases. The defense frequently depends on the nature of the sodomy charge.

A. Defense in forcible sodomy cases

One of the more common defenses in forcible sodomy cases is that there actually was consent. The defendant may be claiming that there was sexual conduct between the parties but that it was completely consensual and that the claims of force are not true and motivated by things such as the desire for revenge, the regret of the woman, or things such as retribution if the man has moved on to another woman.

Surprisingly, the issue of identity, while it can be a valid defense, is not raised that often. This defense is simply a version of “I didn't do it.” In this case, the accused is not saying that a crime did not occur; they are saying that they were not responsible for a crime that may have occurred. Often this type of defense is coupled with an alibi defense to establish that the accused person was in another place or was incapable of having committed the crime. In this line of defense sometimes, the issue of mistaken identity is raised.

B. Defense in physically or mentally helpless sodomy

In charges of physically or mentally helpless sodomy in the first degree, the issue can focus on whether or not the person was either physically or mentally helpless. For example, I recently defended the case in which a woman was drunk and then engaged in sexual activity with my client. The issue was whether she was so very intoxicated as to be incapable of providing consent. The prosecution's argument was that she was so intoxicated as to be passed out and could not consent. The wild woman had passed out at some point in time she had come to and, given her statements, there was evidence that she was voluntarily participating in the sexual conduct. Ultimately, we prevailed in the charges against my client were dismissed.

Of course, this is not always a successful defense. I had one client who worked at a hospital that took advantage of women after they been anesthetized. Between the videotaped evidence on the fact that these women were clearly incapable of consent, this did not seem like a case it would be wise to try. Here we negotiated but it was not a case where the client could walk away without any consequences.