An Oklahoma appeals court has shown yet again how outdated some laws are, after it ruled that forcing an unconscious victim to perform oral sex isn’t technically rape if the victim is intoxicated. If that doesn’t make any sense to you, lots of people out there are agreeing.
The case that brought this whole issue up in the first place goes like this: According the the Guardian, a 17-year-old boy drove home a 16-year-old girl from a party. There was another passenger who was in the car for a while who said the girl was so drunk that she had to be carried out of the party and was coming in and out of consciousness. Later that night, she was dropped off at her grandmother’s house, but then brought to the hospital.
Hospital staff found a few things with this highly intoxicated 16-year-old. Firstly, her blood alcohol content was above .34—more than 4 times the legal driving limit. Second, DNA of the boy who drove her home was found in her mouth and on the back of her leg.
The boy told investigators that she consented to performing oral sex. However, the girl could not remember anything after leaving the party. The 17-year-old boy was then charged with forcible oral sodomy.
According to ABC 13, the case was thrown out by the first court. That ruling was upheld by The Oklahoma Court of Criminal Appeals. “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,” said the Appeals court in a unanimous decision.
In other words, if someone forces you to perform oral sex while you’re passed out drunk, that person is not doing anything illegal. This was based on a current (and outdated) state law, which does not address victim intoxication. And because the law’s language doesn’t explicitly say that oral sex with an unconscious, drunk person is rape, the court can’t charge this guy with rape.
This has sparked a huge debate and a lot of anger across the country. Benjamin Fu, Tulsa County’s assistant district attorney prosecuting the case, said the interpretation of the law was “insane,” “dangerous,” and “offensive.” The courts essentially told him, “We’re not going to create a crime where one does not exist,” according to Oklahoma Watch.
This is a stunning paragraph from an Oklahoma appeals court. https://t.co/JL2j9so079 pic.twitter.com/uEqewB5Uqd
— southpaw (@nycsouthpaw) April 28, 2016
While some blame the courts, others, such as dean of CUNY School of Law Michelle Anderson, say that it was an “appropriate” ruling but an “archaic” law. “It creates a huge loophole for sexual abuse that makes no sense,” Anderson said to the Guardian.
Oklahoma State Representative Scott Biggs seems to agree. In a statement put out Friday morning, Biggs said, “I am horrified by the idea that we would allow these depraved rapists to face a lower charge simply because the victim is unconscious…I think the judges made a grave error, but if they need more clarification, we are happy to give it to them by fixing the statute. Unfortunately, legal minds often get stuck on questions of semantics, when it is clear to most of us what the intent of the law is.”
If one good thing was to come out of the case, maybe it is finally a push on state governments to change laws that let any kind of rape be legal.