An Oklahoma case ruled last month that oral sex is not considered rape in the event that the victim is unconscious due to alcohol consumption.
According to The Guardian, this ruling was based on allegations that a 17-year-old boy had sexually assaulted a 16-year-old girl while she was intoxicated.
The two teens had reportedly been drinking in a Tulsa park. The boy later offered the girl a ride home after it was clear she was too intoxicated to drive herself. Witnesses would later say the girl had to be carried to the car with one boy stating she was "coming in and out of consciousness."
The girl was later taken to the hospital, unconscious with a blood alcohol level of .34, and given a sexual assault examination in which the boy's DNA was found on the back of her leg and around her mouth.
The boy reportedly said later that the girl consented to the sex act, while she has stated she has "no memories after leaving the park." Tulsa County prosecutors charged the boy with forcible oral sodomy, but an appeals court ruled last month that the law didn't apply to the victim because she was drunk.
“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.
In explaining its reasoning, the court said that incapacitation due to alcohol was not specifically listed as something that constituted force within the statute and they couldn't "enlarge a statute beyond the fair meaning of its language.”
Legal experts, including Tulsa County's district attorney, Benjamin Fu, who led the case, say the law as its currently being interpreted places blame on the victim.
“The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent,” 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.”
But, Michelle Anderson, who is the dean of the CUNY School of Law, told The Guardian that she does not blame the court, explaining that the ruling was “appropriate” but the law is “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.”
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