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Missouri omnibus bill closed loopholes for sexually related offenses (updated with graphic)

JEFFERSON CITY, Mo. — While national attention is turned toward the Maryville case involving the alleged rape of Daisy Coleman and her 13-year-old friend, Missouri only recently saw a change in its criminal code that closed certain loopholes for individuals accused of forcible rape.

For several years, lawmakers have sought to modernize Missouri’s criminal code, which had not been significantly revised in over 30 years. An omnibus bill passed last year, signed into law by Gov. Jay Nixon and which took effect on Aug. 28 included language expanding the definition of forcible rape.

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Previously, a perpetrator who comes across a person who became incapacitated because of their own actions could not be charged with forcible rape if they had intercourse with that person without any sign of consent or non consent. In other words, if someone had sex with a person who drank him or herself into unconsciousness, that person was not guilty of rape.

Rep. Jay Barnes, R-Jefferson City, was responsible for language change. Barnes, an attorney, sat on the Joint Committee on the Criminal Code Rewrite. Barnes said the committee went through the Missouri criminal code “section-by-section.” After coming across the section defining sexual offenses, Barnes said he and some of his fellow committee members felt there was a “major” loophole in the definition of forcible rape.

“We wanted to make it clear that if you come across an incapacitated person and have that kind of contact, that it is forcible rape,” Barnes said. “Previously there could be a defense you could mount against that charge, but we wanted to make sure you couldn’t argue that way.”

Barnes said he originally began offering the language as a separate bill and tried to “tack it on to everything,” before finally offering it as an amendment to HB215, the omnibus bill sponsored by Rep. Stanely Cox, R-Sedalia.

“This actually was before the Stuebenville case or the Maryville situation,” Barnes said. “But what is interesting is that by the time it was on [HB215] the lawyers for the defense in Stuebenville were actually using the defense we were trying to stop because Ohio statute at that time was similar to Missouri statute.”

Lawyers for the accused in the Stuebenville rape case argued, among other things, that because the victim was unconscious because of her own drinking on the night in question, there was no forcible rape based on Ohio statute.

“Now it’s likely that someone accused of forcible rape under the old statute who used this loophole in their defense can probably still be found guilty of some other crime,” Cox says. “Sexual assault or something of that nature is possible, but prior to Aug. 28, our law had that loophole in it.”

The language stipulates that having sexual intercourse with someone who is incapacitated — regardless of how they became incapacitated — is rape.

The law also states, however, that in lieu of incapacitation or lacking the capacity to consent, forcible compulsion is required for the crime to be defined as forcible rape. Forcible compulsion does include the administration of substances against the will of the victim, but does not include the administration of substances with the victims consent.