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Court: Oral sex not rape if victim is intoxicated, unconscious

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TULSA, Okla. - An Oklahoma court has upheld a ruling not to bring charges of forcible sodomy against a defendant because the victim was drunk at the time.

The ruling relates to a 2014 case, where a 16-year-old girl said she was sexually assaulted by a schoolmate after drinking and smoking marijuana in a Tulsa park.

After the girl became incapacitated and unable to walk -- her blood-alcohol level was later found to be four times the legal limit to drive -- two friends carried her to her assailant's car, who allegedly forced her to perform oral sex.

The alleged perpetrator initially told police that the sex act was consensual, but the girl told them that she had no memory of it.

The then-17-year-old boy was charged with first-degree rape and forcible oral sodomy, according to Oklahoma Watch, a nonprofit investigative journalism body that's been following the case. The rape charge was later dropped due to lack of evidence.

A district court dismissed the forcible oral rape charge based on the wording of the state's forcible sodomy law. It is distinct from the laws for rape, which is defined in the state as a forced act of "sexual intercourse involving vaginal or anal penetration." The ruling was appealed to the Oklahoma Court of Criminal Appeals, which upheld the lower court's decision.

The court dismissed the charge because unconsciousness and intoxication are not mentioned in the state's forcible sodomy law. Essentially, the court would've been rewriting the law if it'd found the defendant guilty.

Rewriting the law

The appeals court states that it upheld the earlier ruling because to do otherwise would, in effect, be rewriting the law to fit the case in question.

"We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language," it said.

Benjamin Fu, director of the special victims unit for the Tulsa County District Attorney's Office and the lead prosecutor on the case, called the decision absurd.

"I don't believe that our legislators or our citizens believe that we as prosecutors or as a public should be focusing on the conduct or choices that a victim made in order to determine whether or not an assailant should face criminal liability," Fu told CNN affiliate KTUL.

Assistant Director for Domestic Violence Intervention Services Donna Mathews says it's imperative that the language of the law be changed. "The legislature has the job of making it right and the rest of us as the public the job of reaching out to our legislators to say 'we want you to do this'," Matthews told the station.

After the ruling, state Rep. Scott Biggs -- who co-sponsored the initial bill -- announced plans to amend the "legislation to define forcible sodomy in a way that includes unconscious victims," his office said in a statement.

"If they need more clarification, we are happy to give it to them by fixing the statute," Biggs said. "I am horrified by the idea that we would allow these depraved rapists to face a lower charge simply because the victim is unconscious."

Shannon McMurray, an attorney for the defendant, told Oklahoma Watch she thought prosecutors handled the case poorly.

"The court agreed what the state was attempting to do was rewrite statute and add an element," McMurray said. "You can't substitute force with intoxication under the law."

Fu expressed concern that, while the verdict remains "unpublished" -- meaning that it cannot be used as precedent -- the case would be used to inform other, similar defenses.

10 comments

  • BOB

    Why would a 16-year old get drunk and leave herself vulnerable to sexual assault. That’s like leaving the car keys in your convertible in Detroit at night and expecting the car to still be there the next day. Just ain’t smart.

  • David

    This decision is wrong as wrong can be!! The lawmakers and the Judge…all need their heads examined on this one. These boys clearly got away with forcible sodomy…because the girl was intoxicated and unconscious. Hate to tell you morons this…unconscious is NOT an automatic consent to any sexual act. You all should be disbarred for life. Karma will get you for this one.

    • BOB

      No comment on a 16-year old girl who gets drunk and expects everybody else to protect her high moral standards? You sound like the kind of guy that would leave his keys in his convertible and expect car thieves to pass up the temptation.

    • Bobs a jerk

      I’ll respond to you Bob. Kids do stupid things. They’ll take medicine to get a high, they’ll “borrow” their parents car without permission, and they always think they’re right. However none of that justifies someone being forced to perform oral sex. It’s already sad we live in a society with people trying to intoxicate a girl to the point where they can take advantage of her, but the fact you’d defend the people with those intents is abhorrent. You should seriously be ashamed of yourself. What if your daughter had a lapse in judgment and was raped by someone purposely taking advantage of her bad decision. Would you be supportive of rapists then, Bob? You should be ashamed of yourself and you fail as a human. Hopefully the next time you make a mistake someone much nicer than you is around to help you out.

      • C'MON BOBS A JERK

        @BOBS A JERK (aka JERK)
        Apparently an Oklahoma court just doesn’t see it your way JERK. Apparently an Oklahoma appeals court agreed with the lower court ruling.

        Girls that get sloppy drunk and pass out give the boys who drink and party the impression that they have the same lack of morals as the boys.

  • ANOTHERBOB

    Here’s a clue ladies: The men on the prowl for anything what’s available are going to view a drunk female who has passed out as a gift from heaven. What part of that very basic concept is it that some women don’t understand?

    And yes, the smart women among you don’t allow themselves to get into situations where they have no control over what is going to happen to them. They want to know who the father of their children is/was.

    • Bobs a jerk

      You’d seriously blame the victim for being raped? What is wrong with you? If your mother was dragged into an alley and men beat, robbed, and raped her would you make excuses for them? Maybe we should focus on how horrible it is that people still think this is appropriate behavior instead of how to avoid it. Unless a woman says yes the answer is no. It does not matter if she’s drunk, passed out, or flirts with you. Hopefully no one close to you gets raped because you’d be a horrible person to lean on for support. Feel lucky you never have to worry about being sexually assaulted just because you exist.

      • C'MON BOBS A JERK

        @BOBS A JERK (aka JERK)
        No need to panic JERK. The story is very clear that a rape did not take place. Stop your hyperventilating and go back and read the story you idiot.

      • BOB

        @BOBS A JERK (aka JERK)
        Who do we blame when somebody leaves the keys in the ignition of his convertible on the rough side of town and comes back to find his car is gone?

        If you don’t want your car stolen lock it.

        If you don’t want your purse stolen take it with you.

        If you don’t want to get sexually molested don’t get sloppy drunk and pass out around a bunch of drunk guys with the same lack of moral values as you.

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