An Oklahoma court has stunned local prosecutors with a declaration that state law does not criminalise 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appeals court, is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape.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 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.
No memories
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 March 24th, 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 offence, 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,” Mr 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.
‘Archaic’ law
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.”
In the wake of the ruling, Mr 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, Ms 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. – (Guardian service)