Forcible Sodomy And Oral Rape Legal In Oklahoma If Victim Can’t Say ‘No’ Due To Intoxication

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If you are considering a cross-country drive, it might be wise to set your GPS to avoid Oklahoma. This state’s highest criminal court just came out with a legal ruling that is so despicable, it might actually be dangerous. Would-be criminals have just been given the biggest get-out-of-jail card to date.

According to Oklahoma Watch, The Oklahoma Court of Criminal Appeals decided that if a victim is unconscious or intoxicated, it is perfectly fine to commit “forcible sodomy” on them. That’s right. Apparently, the state’s forcible sodomy law just doesn’t count if the victim can’t say “no.”

Given that logic, it would be perfectly fine for someone to kill you, as long as you were too drunk to say “no,” or they knocked you out first.

The court’s decision is sadly ironic, since Oklahoma and 13 other states still have anti-sodomy laws on the books.

The sodomy case before the court occurred after two high school students had been drinking and smoking marijuana with some friends. The girl, 16, had been drinking, and her blood-alcohol level was .341, or more than four times the legal limit to drive. She had severe alcohol poisoning, according to court records.

Several other kids who were with them testified, saying the girl was stumbling and falling. So, they let the defendant take her in his car. Two of the boys had to carry her to the car because she was so drunk she could not walk. She was drifting in and out of consciousness.

After the defendant drove her to her grandmother’s, her family took her to a Tulsa hospital. The medical personnel performed a sexual assault exam, and the boy’s DNA was found on her.

When the police interviewed the boy, he said she consented to oral sex. In fact, the whole thing was her idea. The girl said she had no memory of the incident.

Tulsa County assistant district attorney Benjamin Fu, director of the office’s special victims unit, said the ruling was “offensive,” dangerous,” and “insane”:

‘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.’

‘My argument was that if you rule today that because she was intoxicated it can’t be force, then … you’ll have to engage in what I can only refer to as the ‘orifice test.’ Whereby the contact by the defendant and the state of mind of the victim are the exact same. It just depends on [the location of the sexual act].’

The young man’s attorney Shannon 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.’

‘The court agreed what the state was attempting to do was rewrite statute and add an element. You can’t substitute force with intoxication under the law.’

The state’s law says:

‘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.’

Fu was angry with the court’s decision:

‘All this does is add to the fire. Their [sexual assault victims’] biggest fear is that people they tell the story to won’t understand or will judge them for their behavior. If they had that concern, the Court of Criminal Appeals affirmed that, 5-0.’

Police charged the teen, who was 17-years-old when he committed forcible sodomy, as a “youthful offender.” That means that he will move from the juvenile system to prison when he turns 19.

The appeals court wrote an “unpublished opinion” saying:

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

Now, if the criminal rapes the victim under the same circumstances, that is a crime. The key word is “can,” meaning the court doesn’t believe forcible sodomy is possible when a person is unconscious or drunk.

Unbelievable.

Featured Image: Tom Fogg via Flickr, Creative Commons License.

H/T: Oklahoma Watch.