Plan B Forum

An Oklahoma court has stunned local prosecutors with a declaration that state law doesn’t criminalize 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appeals court, is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape.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 that 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.

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 24 March, 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 offense, 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”.

Someone who is intoxicated to the point of unconsciousness is clearly incapable of giving legal consent.

The court's ruling gives free rein to perverts to abuse anyone incapacitated by alcohol or drugs, as well as comatose patients and those with injuries or other conditions rendering them unconscious.

B. The crime of forcible sodomy shall include:

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2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or

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"Clearly, the term "unsoundness of mind" is limited to those situations in which the victim is either a mentally ill person or a mentally deficient person. The term does not contemplate those situations in which a victim is unable to consent simply because of unconsciousness. "