Ruling is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape

An Oklahoma court has stunned local prosecutors with a declaration that state law doesn't criminalize oral sex with a victim who is completely unconscious.

The ruling, a unanimous decision by the state's criminal appeals court, is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape.

But legal experts and victims' advocates said they viewed the ruling as a sign of something larger: the troubling gaps that still exist between the nation's patchwork of laws and evolving ideas about rape and consent.

The case involved allegations that a 17-year-old boy assaulted a girl, 16, after volunteering to give her a ride home. The two had been drinking in a Tulsa park with a group of friends when it became clear that the girl was badly intoxicated. Witnesses recalled that she had to be carried into the defendant's car. Another boy, who briefly rode in the car, recalled her coming in and out of consciousness.

The boy later brought the girl to her grandmother's house. Still unconscious, the girl was taken to a hospital, where a test put her blood alcohol content above .34. She awoke as staff were conducting a sexual assault examination.

Tests would later confirm that the young man's DNA was found on the back of her leg 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. Tulsa County prosecutors charged the young man with forcible oral sodomy.

But the trial judge dismissed the case. And the appeals court ruling, on 24 March, affirmed that prosecutors could not apply the law to a victim who was incapacitated by alcohol.

"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."

Benjamin Fu, the Tulsa County district attorney leading the case, said the ruling had him "completely gobsmacked".

"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.

But several legal experts declined to fault the appeals court, saying instead that the ruling should be a wake-up call for legislators to update Oklahoma's laws.

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".

"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," she said. "It creates a huge loophole for sexual abuse that makes no sense," she said.

Jennifer Gentile Long, who leads a group, AEquitas, that guides prosecutors in sexual and domestic violence cases, agreed. She said the Oklahoma law was an example of a gulf that still exists in some places between the law and evolving notions around consent and sexual agency.

Oklahoma has a separate rape statute that protects victims who were too intoxicated to consent to vaginal or **** intercourse, Long noted. But "there are still gaps in the ways laws are written that allow some cases to fall through the cracks," she said. "This case" - because it did not involve vaginal rape but an oral violation - "seems to be one of them".

In the wake of the ruling, Fu has said he will push for lawmakers to change the code. Many states have engaged in a broad overhaul of their rape laws in recent years, Anderson said, part of a movement to fall in line with the modern understanding of rape.

"There is a recognition that social mores have changed, that the law should now try to protect sexual autonomy as opposed to sexual morality," she said. Often, the law changes after an outcry over unpopular court rulings.

The Oklahoma appeals court declined to make the ruling a precedent. But Fu said he has learned that other defendants are nevertheless making the same argument in other parts of Oklahoma to avoid charges.

The defendant's attorney, Shannon McMurray, was not available for comment. She told Oklahoma Watch, which was first to report the ruling, that prosecutors were clearly in the wrong to charge the young man with forcible sodomy, and not a lesser crime of unwanted touching.

"There was absolutely no evidence of force or him doing anything to make this girl give him oral sex," McMurray said, "other than she was too intoxicated to consent."
http://www.rawstory.com/2016/04/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/

they keep using the word "forced"... that's what the whole law is about, they can't determine if it was forced...

I agree

they were both drinking,, judgment of both is impaired, how can either be accountable

how can it be determined that she hadn't given consent,, before passing out,,

too much grey to determine this to be criminal

Guess it is like Clinton said "I did not have sex with that woman" and "depends what your definition of sex is"

funny but true

and if all involved are intoxicated,,,,where is the legal accountability for anyones choices?

I guess there is a lesson here don't get so drunk... You put yourself in this situation.

not only that, but it is very one sided on these cases where the male gets branded for life, even if the female instigated the whole thing and lies about it... it seems to be better just to keep it in your pants regardless, but what 17 year old boy understands that, especially when drunk?

Agreed..very surprising the court decided it that way...hopefully they will both learn from this...we all do dumb things when we are young.

Yup Oklahoma laws are in need of an update.

I'm surprised neither were charged with underage drinking...

Edited for off-topic.
Kindly do not co-mingle threads.

soufie
Site Moderator

As I was saying...like the two teenagers, some are just so clueless they don't realize how unfair their decisions are based on what they think is right or wrong.

I'm surprised that alcohol producers aren't being sued for not putting a warning label on bottles stating that over consumption could result in actions that could be regretted after sobering up.

shhhh... the liberals haven't thought of that yet...

If I'd sue, I'd be a kabillionair

"The case involved allegations that a 17-year-old boy assaulted a girl, 16, after volunteering to give her a ride home. The two had been drinking in a Tulsa park with a group of friends when it became clear that the girl was badly intoxicated. Witnesses recalled that she had to be carried into the defendant's car."

WRONG ! Taking advantage of any person is wrong.

** Be it drunk, drugged, stressed, emotional up-set and so forth.

** Every professional association has this and more in their minutes. (Law Society is the only one to exempt the last two)

Or at least have enough money to get a still and make your own booze once the alcohol companies go bankrupt.

** I'm surprised We all do not know right from wrong !
* Mingle2's are social cutting edge !

My guess is that there are politicians that have thought of it...maybe there is an alcohol lobby on K Street that has paid for their silence.
Not that payola is allowed or that it would ever influence politicians introducing legislation or imposing rules and/or regulations.

Damn....

I thought I read "drunken oral sex tape"....
I was ready to watch...now I'm all.....
Deflated...