Oklahoma’s highest criminal court shocked critics and local prosecutors when, according to The Guardian, they declared a 16-year-old girl’s rape perfectly legal, because she was “so intoxicated as to be completely unconscious.” Even worse, this was an appeals court; they were reaffirming the decision of a trial judge who had dismissed the case in 2014 — a decision prosecutors called “absurd” and appealed.
According to the allegations of the case, brought against a 17-year-old boy by Tulsa County prosecutors, the boy had volunteered to give the girl a ride home after the pair had been drinking in a Tulsa park with friends. Witnesses indicated that she was so intoxicated that she had to be carried into his car, and another passenger remembered her passing in and out of consciousness. Witness testimony of the girl’s condition was all that was available, because she herself had no memories of anything past leaving the park.
The boy ultimately dropped her off at her grandmother’s house, where she remained unconscious and was subsequently taken to the hospital, testing with a blood alcohol level above.34 — close to the level required to put a person in a coma and possibly cause death.
She finally awoke as hospital staff were performing a sexual assault examination — one which led to finding the boy’s DNA on the back of her leg and around her mouth. According to the boy, she had been consenting; according to her, she had no memories; and according to witnesses and the evidence of her blood alcohol level, she hadn’t even been conscious. Per Oklahoma Watch, Tulsa County prosecutors charged the young man with first-degree rape and forcible oral sodomy.
But Tulsa County District Court Judge Patrick Pickerill dismissed the case on the basis that, while the state has a separate rape statute that protects victims who were too intoxicated to consent to vaginal or anal intercourse, there is no such statute regarding oral intercourse. Tulsa County district attorney Benjamin Fu appealed the decision, and the unanimous 5-0 decision in favor of the dismissal left him, in his words, “completely gobsmacked.”
“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. And I don’t think the law was a loophole until the court decided it was.”
Oklahoma’s rape law is clear that rape can occur when the victim is intoxicated or unconscious. But the forcible sodomy law does not include that language.
The OCCA made their decision based on that lack of specific language about liquor and the definition of force.
“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. We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”
Fu, and others, are outraged at the decision, calling it “archaic” and victim-blaming. Legal experts, including CUNY School of Law dean Michelle Anderson, are now calling on legislators to bring Oklahoma’s rape laws in line with the rest of the country.
“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.”