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OK Court Rules Forced Oral Sex while Unconscious is NOT rape? What?!!

May 6, 2016







Image Source: tulsaworld.com

Image Source: tulsaworld.com

Yes. On March 24, in a unanimous decision, Oklahoma’s criminal appeals court ruled (PDF link):

Forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation,” the decision read. Its reasoning, the court said, was that the statute listed several circumstances that constitute force, and yet was silent on incapacitation due to the victim drinking alcohol. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.” This was an “unpublished opinion,” meaning it cannot be cited as a precedent.

The case in question involved two high school students. The female student, who was 16 at the time, had drunk a large quantity of vodka; blood tests would later show her blood-alcohol level at .341, more than four times the legal limit to drive and indicative of severe alcohol poisoning. Later, the defendant brought the girl, who still was not conscious, to her grandmother’s house, and the family took her to a Tulsa hospital. A sexual assault examination was conducted, and the boy’s DNA was found on her legs and around her mouth. The boy claimed to investigators that the girl had consented to performing oral sex. The girl said she didn’t have any memories after leaving the park.

Some legal scholars have observed that the ruling, while creating a bad outcome, is in proper alignment with the state’s laws, as they are written. Michelle Anderson, the dean of the CUNY School of Law who has written extensively about rape law, called the ruling “appropriate” but the law “archaic”. One activist noted that while Oklahoma has a separate rape statute that protects victims who were too intoxicated to consent to vaginal or anal intercourse, but does not specifically cover oral violation. The Oklahoma statute in question can be found here.

Critics of the ruling include Benjamin Fu, the Tulsa County district attorney leading the case. According to Fu, “The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent,” Fu said. “I don’t believe that anybody, until that day, believed that the state of the law was that this kind of conduct was ambiguous, much less legal. And I don’t think the law was a loophole until the court decided it was.” To focus on why the victim was unable to consent, he continued, puts the victim at fault. As a comparison, Fu referred to the fact that an intruder who enters the unlocked door of a home can be still charged with breaking and entering.

The defendant’s attorney said, “There was absolutely no evidence of force or him doing anything to make this girl give him oral sex,” “other than she was too intoxicated to consent.”

State Rep. Scott Biggs announced that he is planning to amend Oklahoma’s legislation to define forcible sodomy in a way that includes unconscious victims.

Image Source: cnn.com

Image Source: cnn.com

What do you think? Did the Oklahoma criminal appeals court interpret the existing statute too narrowly, or does the burden fall on the Oklahoma legislature to update the state’s outdated laws?

Posted by Mary Mock at 3:03 am - no comments
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