An Oklahoma court shocked prosecutors and anti-rape activists when it ruled state law does not criminalize oral rape if the victim is unconscious.
The ruling is causing widespread condemnation from critics saying the judicial system was engaged in victim-blaming and has obsolete and false views on rape.
The decision was unanimous by the state’s criminal appeals court, but legal experts and victims’ advocates believe this ruling is only a symptom of a much bigger problem: the differences between America’s rape laws and today’s modern viewpoints on consent.
Oklahoma Watch describes the details of the case:
The case in question involves two high school students who were drinking and smoking marijuana with several friends at a Tulsa park into the early morning hours of June 1, 2014.
The female student, who was 16 at the time, had drunk a large quantity of vodka; blood tests would later show her blood-alcohol level at .341, more than four times the legal limit to drive and indicative of severe alcohol poisoning, court records state.
Court transcripts showed several other minors who were present testified that the girl was stumbling and falling. The group agreed to allow the defendant in the case, who attended the same school, to take her somewhere to stay in his car.
Records state that two boys had to pick the girl up and carry her to the car. Another boy who rode with the two but was later dropped off testified that the girl was drifting in and out of consciousness and could not walk.
Later, the defendant brought the girl, who still was not conscious, to her grandmother’s house, and the family took her to a Tulsa hospital. A sexual assault examination was conducted, and the boy’s DNA was found on her, court records show.
In an interview with police, the defendant said the victim engaged in consensual oral sex with him and it was her idea. The girl told officers she could not remember anything after being at the park.
Prosecutors initially charged the boy with first-degree rape and forcible oral sodomy, but because there was no evidence showing he had raped the girl, that charge was dismissed.
Later, Tulsa County District Court Judge Patrick Pickerill dismissed the forcible oral sodomy charge, stating unconsciousness and intoxication are not present in the law’s definition of the crime.
The Tulsa County district attorney prosecuting the case, Benjamin Fu, could not believe the trial and appeals court rulings on the case. He said, “I told the court that this (argument) is absurd. And their response was essentially, ‘We’re not going to create a crime where one does not exist.’”
Is the Tulsa court solely to blame, though? What about Oklahoma’s archaic law? This ruling should be treated a sign to legislators to update the state’s rape laws. Many other states have done this decades ago. Oklahoma currently has a law that protects victims who are drunk and cannot consent to intercourse. However, this statute does not apply to oral rape. This loophole should be closed by the Oklahoma legislature.
And the other side of the argument? According to Oklahoma Watch,
Shannon McMurray, attorney for the defendant, said prosecutors handled the case poorly and a charge of sexual battery would have been more appropriate. However, because the girl did not remember, it would still be difficult to prove she did not consent, McMurray said.
“They (prosecutors) were trying to substitute one element for the other, meaning intoxication in the rape statute, when there was absolutely no evidence of force or him doing anything to make this girl give him oral sex other than she was too intoxicated to consent…”
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(Article By Jeremiah Jones)
Update: Months after this ruling, Oklahoma lawmakers finally closed the loophole and amended the law. Now, sex crimes in the state will not go unpunished when the victim is unconscious or intoxicated.