Five senior judges in an Oklahoma appeals court have ruled that in cases where victims are passed out after consuming too much alcohol, oral sex acts performed on them without their consent cannot be considered as rape in the eyes of the law.
The unanimous decision on the legal understanding of ‘forcible sodomy’ – rape involving the mouth or anus of the victim – was not covered by an “intoxication circumstance.”
Prosecutors in the Ottawa County district have described the ruling as “absurd,” arguing that the judges missed the opportunity to fix what has long been considered an unintentional loophole in the law.
The case centred around the judges’ consideration of a 17-year-old boy accused of sexually assaulting a 16-year-old girl after giving her a lift home in his car after a drinking session in a park in Tulsa. The girl, according to the local newspaper the Oklahoma Watch, had been seen by friends drifting in and out of consciousness in a drunken state before entering the car.
When she regained consciousness, it was to discover doctors performing a sexual assault examination in a hospital ward, which uncovered DNA belonging to the accused on her legs and in her mouth.
Speaking to police officers, the boy admitted to engaging in oral sex with the girl, saying that she had consented to the act and that it had been her idea. For her part, the girl could remember no events after leaving the Tulsa park.
Initially, the charge of rape proposed by the district attorney was later dropped to forcible oral sodomy, but these charges were later also dismissed after lawyers established that both unconsciousness and intoxication are not included in the definition of that crime – despite existing under the charge of rape.
“We will not, in order to justify prosecution of a person for an offence, enlarge a statute beyond the fair meaning of its language,” the appeals court offered as its opinion.
Benjamin Fu, the lead prosecutor in the case, expressed grave concern over the court’s decision, saying he and police officials would work together to bring about a change in the penal code to change the “insane” and “offensive” loophole.
