Local prosecutors were shocked by an Oklahoma court recently after it declared that state law doesn’t criminalize oral sex with a victim who is completely unconscious.
The court ruled to dismiss a case involving allegations that a 17-year-old boy sexually assaulted a 16-year-old girl who was reportedly unconscious, according to The Guardian.
The girl was drinking with a group of friends at Tulsa park when she reportedly became “badly intoxicated.” According to witnesses, the girl had to be carried to the boy’s car. One person, who reportedly rode in the vehicle for a short amount of time, indicated that the victim slipped in and out of consciousness during the car ride.
The Guardian reports that the boy brought the girl to her relative’s home. Later she was taken to the hospital where a blood test showed her alcohol content above a .34. She regained consciousness as medical staff were conducting a sexual assault examination.
Tests confirmed the boy’s DNA was present on her body, near her mouth and the back of her leg. Investigators say the boy claimed that the girl consented to having oral sex. When asked, the girl said she did not have any memories after leaving the park.
Tulsa County prosecutors eventually charged the boy with forcible oral sodomy.
Then a trial judge dismissed the case. On March 24, according to The Guardian, the appeals court affirmed that prosecutors could not apply the law to the victim because she was inebriated or unconscious.
“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.
The court reasoned that while the statute listed several circumstances that constitute force, it was silent on incapacitation due to the victim drinking alcohol, reports The Guardian.
“We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”
The Tulsa County District Attorney leading the case, Benjamin Fu, says the ruling had him “completely gobsmacked,” as reported by The Guardian.
“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.
While Fu’s reaction was surprise, some legal experts say the decision wasn’t surprising but a wakeup call to work on altering Oklahoma laws regarding sexual assault.
Jennifer Gentile Long who leads a group called AEquitas that guides prosecutors in sexual and domestic violence cases pointed out that this case shed light on a bigger issue. She said the Oklahoma law provides room for loopholes in regards to preventing sexual assault convictions.
While the state has a rape statue that protects victims who were intoxicated during their alleged consent, it only applies to vaginal or anal intercourse not oral.
Long says “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.”
Now, Fu is pushing for lawmakers to change the code.
The defendant’s lawyer told Oklahoma Watch, that prosecutors were in the wrong to charge the boy with forcible sodomy instead of the 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.”
