Oklahoma Court Rules That Oral Sex Is Not Rape If The Victim Is Unconscious

Yesterday, in a ruling that is guaranteed to make you want to set something on fire, Oklahoma’s Criminal Appeals Court declared that state law does not criminalize oral sodomy on a victim who is unconscious.

According to the Guardian, the judgement was made upon review of an appeal of a case that has already been tossed out by the trial judge, involving a 17-year-old boy prosecutors charged with orally sodomizing a 16-year-old girl while she was unconscious from drinking. The boy claimed the oral sex was consensual, while the girl said she did not remember anything – the fact that she had been orally sodomized came to light after she was taken to the hospital and a sexual assault examination revealed the boy’s DNA around her mouth. Witnesses confirmed that she was so incapacitated that she had to be carried and that she kept slipping in and out of consciousness.

“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 Court’s decision read, going on to explain that the statute does not refer to incapacitation due to alcohol consumption on its list of circumstances that constitute force. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”

Uhhhhhh, if a person is incapacitated and/or unconscious BY ANY FUCKING MEANS – be it booze, sleep, illness, hypnosis, WHATEVER – they cannot consent. The verb “to force” means to “make someone do something against their will” — if that someone is not in a position to convey if they are for or against having oral sex, and oral sex occurs anyway, it was forced upon them. They had no choice. IT’S RAPE. By focusing on how the unconsciousness occurred, the court is victim-blaming, straight up.

Though the Court acknowledged that the statute is silent on incapacitation due to alcohol consumption, by declaring that oral sex on an unconscious victim cannot be rape, their ruling is anything but. They have, in fact, “enlarged” the statute “beyond the fair meaning of its language” by interpreting and declaring that language to mean something it does not actually say. To be clear: the statute does NOT say that oral rape cannot happen if the victim is drunk. It just does not explicitly refer to incapacitation from alcohol consumption on its list of forceable circumstances.

“The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent,” Tulsa County District Attorney Benjamin 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.”

Clearly, this statute needs to be updated to reflect an evolved understanding of rape and consent, and as soon as possible.

“This is a call for the legislature to change the statute, which is entirely out of step with what other states have done in this area and what Oklahoma should do,” Michelle Anderson, the dean of the CUNY School of Law and an authority on rape laws, told the Guardian. “It creates a huge loophole for sexual abuse that makes no sense.”

While the statute may be archaic and vague, the Criminal Court of Appeals deserves to be DRAGGED for this ruling, because it sets a dangerous precedent in case law that can and will be used to let rapists off the hook in the future.

Or, as Fu put it, “I don’t think the law was a loophole until the court decided it was.”

[Guardian]