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Kathryn Lindsay
April 29, 2016 4:49 am

We’re almost too stunned to believe it: back in March, an Oklahoma ruled that oral sex is not rape if the victim is unconscious from drinking alcohol.

This specific ruling is based on a 2014 case that alleged that a 17-year-old boy forced a 16-year-old girl to perform oral sex while she was heavily intoxicated. The UK’s Guardian reports that after drinking in the park, the boy drove the girl to her grandmother’s house. From there, she was taken the hospital, where they found the boy’s DNA around her mouth and on the back of her leg.

While the boy claims the girl consented to oral sex, the girl told investigators that she didn’t remember anything after leaving the park. He was charged with forcible sodomy before the court concluded that “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.”

This may sound unbelievable, but it’s based on a technicality. While the applicable statute lists what constitutes “forcible,” it makes no mention of intoxication, so that could not be taken into consideration in the ruling. “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 decision concluded.

The Rape Abuse and Incest National Network (RAINN) defines sexual assault as “sexual contact or behavior that occurs without explicit consent of the victim.” The FBI corroborates this, defining sexual assault as, “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

In both of these definitions, “force” does not make or break sexual assault. However, that seems to be the main sticking point in this Oklahoma case, while it at the same time wholly ignores the role that alcohol often plays in coercive or forcible sex. Heavily intoxicated people cannot knowingly give consent to any kind of sex and were this acknowledged in the 2014 case, the 16-year-old victim would have found justice.

Even Benjamin Fu, the Tulsa County district attorney leading the case, told the Guardian that he couldn’t believe the ruling:

“Why is it that having intercourse with someone who is unconscious is clearly illegal, but sodomizing that person is not?” Katharine Baker, a law professor at the Chicago-Kent College of Law, asked when she spoke to Broadly. “The nature of the criminal act here is violating another’s sexual autonomy or integrity without their consent. This [ruling] would suggest that someone could go into [the room of] someone who’s passed out on her bed after going to a party and forcibly sodomize her… and that’s not criminal?”

Others, like Michelle Anderson, the dean of the CUNY School of Law, place the blame on the law. “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 to the Guardian. “It creates a huge loophole for sexual abuse that makes no sense.”

The one thing we can agree on: this law needs to change ASAP. We just wish this realization didn’t come at the expense of justice for those who deserve it.

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