Oklahoma Court: It Isn't Rape If The Victim Was Drunk

An Oklahoma court handed down a shocking decision last month, ruling that a 16-year-old girl who was allegedly forced to perform oral sex while unconscious was not raped because she had been drinking. Oklahoma law stipulates, according to the court, that oral sex imposed upon an individual while that individual is unconscious due to alcohol intoxication is not sexual assault.

The prosecutors were dumbfounded by the ruling, and victims' advocates around the country have expressed outrage at the unprecedented court ruling. The case in question involves a 17-year-old boy who allegedly sexually assaulted a 16-year-old girl after both parties had been drinking. He claims she consented to perform oral sex on him, but she claims that she has no memory of the event. Witnesses in the case recall that the alleged victim had drifted in and out of consciousness prior to the alleged assault.

The 17-year-old boy's DNA was found on the alleged victim's mouth and legs, and Oklahoma prosecutors charged him with forcible oral sodomy – a sex crime. The trial judge, reports The Guardian, dismissed the case, and the Oklahoma court of appeals upheld the previous ruling, specifying that in their words it's not sexual assault if the victim has been 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," read the Oklahoma court's decision in the rape case.

The district attorney heading up the case, Benjamin Fu, was stunned by the ruling. The decision stated specifically that the allegations – that the 17-year-old girl was raped while intoxicated – would cause the law in question to be "enlarged" beyond the "fair meaning of its language."

"The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent. 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," said District Attorney Benjamin Fu, of Tulsa, Oklahoma.

Fu wasn't the only one "completely gobsmacked" by the Oklahoma court's decision which appears to legalize certain forms of sexual assault – as long as the victim is rendered unconscious by alcohol intoxication. Victims' advocacy groups all over the U.S. spoke out against the ruling, calling it "a huge loophole that makes no sense."

"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. It creates a huge loophole for sexual abuse that makes no sense," said Michelle Anderson, dean of the City University of New York Law School.

The fault, Anderson claims, isn't with the judges in this case – it's with the Oklahoma law itself. Oklahoma's sodomy law is written in such a way, claims Anderson, that the court's ruling in this case is sound. She adds that the law itself should just be changed to reflect modern-day norms.

The defendant's attorneys have argued that the case was dismissed due to the prosecution's mishandling of the case, and use of the Oklahoma's forcible sodomy statute instead of lesser charges like "unwanted touching" and "sexual battery."

"The prosecutors were trying to substitute one element for the other, meaning intoxication in the rape statute, when there was absolutely no evidence of force or him doing anything to make this girl give him oral sex other than that she was too intoxicated to consent," said Shannon McMurray, attorney for the defendant.

Prosecutor Benjamin Fu refutes the allegations of the defense, stating that the court's decision will prevent future sexual assault victims from coming forward.

"[Victims'] biggest fear is that people they tell the story to won't understand or will judge them for their behavior. If they had that concern, the Court of Criminal Appeals affirmed that, 5-0," Fu told Oklahoma Watch.

[Photo by Shutterstock/Natalia Bratslavsky]