There's a cute li'l kitten on this post. You've been warned.

In a novel bit of legal reasoning, an Oklahoma state appeals court has decided that under Oklahoma law, oral sex with a person who's completely unconscious isn't actually a crime. They're not unsympathetic to victims, no, not at all; it's merely that they refuse to do violence to the language of the state statute which covers "forcible sodomy." Sometimes allowing a little violence to victims who are unable to give consent is simply the unfortunate side effect of being a textual originalist. Somewhere in the lower depths of hell, Antonin Scalia has to be smiling.

The Guardian has the horrible details:

The case involved allegations that a 17-year-old boy assaulted a girl, 16, after volunteering to give her a ride home. The two had been drinking in a Tulsa park with a group of friends when it became clear that the girl was badly intoxicated. Witnesses recalled that she had to be carried into the defendant’s car [...]

The boy later brought the girl to her grandmother’s house. Still unconscious, the girl was taken to a hospital, where a test put her blood alcohol content above .34. She awoke as staff were conducting a sexual assault examination.

Tests would later confirm that the young man’s DNA was found on the back of her leg and around her mouth. The boy claimed to investigators that the girl had consented to performing oral sex. The girl said she didn’t have any memories after leaving the park. Tulsa County prosecutors charged the young man with forcible oral sodomy.

Ah, but the trial judge dismissed the charges, and the appeals court ruled last month that Oklahoma's forcible oral sodomy law didn't cover what happened to the girl, because strict statutory interpretation:

“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. Its reasoning, the court said, was that the statute listed several circumstances that constitute force, and yet was silent on incapacitation due to the victim drinking alcohol. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”

Tulsa County District Attorney Benjamin Fu, who led the prosecution of the boy, was appropriately shocked by the ruling, although he probably could have come up with a better way of expressing it than saying he was "completely gobsmacked."

“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.” To focus on why the victim was unable to consent, he continued, puts the victim at fault.

Unfortunately, say a number of legal scholars, thanks to the statute's failure to define every scenario under which oral sodomy might be nonconsensual, the real fault isn't so much in the court but in the law. By contrast, Oklahoma's rape statute specifically covers intoxicated or unconscious victims of anal or vaginal intercourse. But since that language doesn't appear in the statute on forced oral sodomy, too bad so sad, in the strictest interpretation of the law. In effect, the appeals court told the 16-year-old girl, "Sucks to be you."

There is at least a small ray of not-horrifyingness to come out of this: District Attorney Fu says he intends to push the Oklahoma legislature to change the law to cover unconscious victims. Michelle Anderson, dean of CUNY School of Law, says many states have been overhauling their rape laws to accommodate understandings of rape and consent that weren't derived by a bunch of drunk frat boys in 1955 (not her exact words):

“There is a recognition that social mores have changed, that the law should now try to protect sexual autonomy as opposed to sexual morality,” she said. Often, the law changes after an outcry over unpopular court rulings.

Also, for what it's worth, the appeals court didn't declare its ruling a precedent. Not that it helps much, since Fu says other rape defendants are already making the same claims in their cases. It might be nice if Oklahoma changed its law before it becomes known as the home of consequence-free oral rape, maybe.

But wait! There's one more bit of legal reasoning in this story to make you hurl your breakfast! Shannon McMurray, the defendant's attorney, explained to Oklahoma Watch, which broke the story, that the real problem here was prosecutorial overreach. Fu's team should have charged her client with a lesser crime of "unwanted touching," not forcible sodomy.

“There was absolutely no evidence of force or him doing anything to make this girl give him oral sex,” McMurray said, “other than she was too intoxicated to consent.”

We know she's only doing a defense attorney's job, but Jesus Horatio Christ in a surrey with the fringe on top. Hey, Oklahoma, could you please take a moment out of your busy agenda of screwing poor people, making abortions impossible, and finding new excuses to put the Ten Commandments on the Capitol lawn, and give some thought to revising your rape laws so they actually make rape illegal? Thanks, that'd be great.


Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.

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