Background
Anibal Zelaya was charged in the 19th Judicial District Court for the Parish of East Baton Rouge with third-degree rape under La. R.S. 14:41. The district court found no probable cause for the charge, apparently concluding that the conduct alleged did not satisfy the statutory definition of rape as it existed at the time of the offense. The State sought supervisory writs from the First Circuit, also requesting a stay of the lower court’s ruling.
The case turned on the effect of 2022 La. Act No. 173, which amended La. R.S. 14:41(B) to expressly clarify that prohibited sexual penetration encompasses penetration accomplished using the offender’s genitals, the victim’s genitals, or an instrumentality. The district court’s no-probable-cause ruling implicitly treated this language as a substantive expansion of the prior statute rather than a clarification of existing law — a distinction with significant consequences for charging decisions tied to pre-amendment conduct.
The Court’s Holding
The First Circuit granted the writ and reversed the district court’s finding of no probable cause, remanding for further proceedings. The court held that 2022 La. Act No. 173 constitutes an interpretive enactment — one intended to clarify the meaning of terms already present in the pre-revision version of La. R.S. 14:41 — rather than a substantive change that created new criminal liability. Because it was clarifying, not new law, no retroactivity concern barred its application to the conduct charged.
The court reasoned that the phrase “any sexual penetration,” which appeared in both the pre- and post-revision versions of La. R.S. 14:41(B), was already broad enough to encompass penetration by the offender’s genitals, the victim’s genitals, or an instrumentality. The 2022 amendment simply made that pre-existing scope explicit. The court relied on its recent decision in State v. B.M.S., 2024-1246 (La. App. 1st Cir. 3/24/26), ___ So. 3d ___, 2026 WL 819717, which addressed the same statutory question. The request for a stay was denied.
Key Takeaways
- 2022 La. Act No. 173’s amendment to La. R.S. 14:41(B) is an interpretive, not substantive, enactment — it clarifies what the rape statute already covered rather than expanding it.
- The pre-revision statute’s “any sexual penetration” language was always broad enough to cover penetration accomplished by the offender’s genitals, the victim’s genitals, or an instrumentality.
- A district court’s no-probable-cause finding is reviewable on supervisory writ, and the First Circuit will reverse where the legal basis for the ruling is incorrect.
- This holding is consistent with State v. B.M.S., signaling a settled First Circuit position on the reach of La. R.S. 14:41 before and after the 2022 revision.
Why It Matters
This decision forecloses a defense argument that the 2022 amendment to Louisiana’s rape statute created a new offense that cannot constitutionally be applied to conduct predating its enactment. By characterizing the amendment as interpretive, the First Circuit confirms that prosecutions involving pre-2022 conduct are not limited to a narrower reading of the statute, provided the alleged act falls within the longstanding “any sexual penetration” language.
Practitioners handling third-degree rape charges — whether at the charging, preliminary hearing, or trial stage — should note that arguments premised on the 2022 revision as a substantive change are now squarely foreclosed in the First Circuit under both Zelaya and B.M.S. Defense counsel challenging the scope of La. R.S. 14:41 will need to look beyond the statutory amendment for any viable interpretive arguments.