Oklahoma court says having oral sex with drunk, unconscious victim is not rape

Legal minds in Oklahoma are critical of a court ruling that says having oral sex with a drunk unconscious victim is not rape, and therefore, not a crime. The legal experts accuse Oklahoma’s Criminal Appeals Court of victim-blaming and having antiquated views about rape.

The case involves a 17-year-old male and 16-year-old female who were drinking in a park in Tulsa with some friends. Because the victim was intoxicated, she had to be carried into the boy’s vehicle. During the ride, another male passenger recalls the victim slipped in and out of consciousness, reports The Guardian.

The girl was dropped off at her grandmother’s house. But because she was still unconscious, she was brought to a hospital. Tests show the victim’s blood alcohol content was above 0.34 and there was a man’s DNA on the back of her leg and around her mouth.

Prosecutors of Tulsa County accused the 17-year-old male with forcible oral sodomy, reports The Independent. He claims the victim agreed to perform oral sex on him. But the trial judge dismissed the case. Explaining the decision, the judge said, “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 judge says the law lists various circumstances that constitute force but excluded incapacity because of the victim being drunk. He said the court would not enlarge a statute “beyond the fair meaning of its language.”

However, Benjamin Fu, district attorney of Tulsa, disagrees with the judge. He says forcible oral sodomy uses forces by taking advantage of a victims who was too drunk to give consent.

CUNY School of Law Dean Michelle Anderson takes the court’s side by saying the judge’s ruling was appropriate, but she admits the law is dated. She said the case is a call for the state legislature to change the statute because the big loophole for sexual abuse does not make sense.