“The majority of laws we have today were written by early legislators who were very religious, white Southern men,” Box said. “Our criminal statutes are a mess. We have [had] lots of laws on the books since 1910, and they’ve never been codified. In some cases, you can’t tell what the punishment is without a lot of research.”
For instance, the adultery law was written in 1910, and a conviction carried a five-year prison sentence and $500 fine. In 1999, the law was amended to exclude a specific prison term but remains a felony.
The statute specifically states the alleged adulterers must be “living together in open and notorious adultery” and that one of the “injured” spouses must initiate the prosecution.
“There is no DA in Oklahoma who would file that type of charge (adultery),” Box said.
The same scenario applies to other outdated laws such as swearing, which is a misdemeanor that carries a $1 fine for each occurrence. A similar statute, speaking obscene language in a public place in front of women or children under age 10, carries with it a $100 fine and no more than 30 days in jail. Both of those laws were passed three years after statehood and have never been changed to reflect current lifestyles and contemporary mores.
Context is important
Sandra Rinehart, a senior state assistant attorney general, said most laws are written for a reason, however obscure, at a particular time in history.
“I see some of them as a sign of the times, or they could have been passed in response to particular incidents that the Legislature thought needed a certain punishment,” she said.
A prime example occurred in 1955, when the Oklahoma Legislature approved a declaration of fact that an international communist conspiracy existed to overthrow the U.S. government. In the same session, legislators declared the Communist Party and all of its affiliated groups illegal.
Still, from a practical viewpoint, it’s unlikely prosecutors in 2014 would charge a person with some of the early 20th-century statutes.
“They are valid, effective laws, but the appropriate person in a criminal case would have to determine to enforce it as a realistic use,” said Renee DeMoss, president of the Oklahoma Bar Association.
According to Rinehart, there may be instances when a law is struck down by a judicial decision but remains on the books with no legal enforcement capability.
Defending a person’s honor and character was an important issue during early statehood. For instance, a 1910 defamation law forbade comments that a woman, whether married or single, had been sexually promiscuous. A conviction brought fines up to $500 and 90 days in jail. >>>