Forceable Sodomy Declared OK In OK If Victim Is Drunk

An Oklahoma court stunned Tulsa prosecutors when they declared that state low doesn't criminalize oral sex with a victim who is completely unconscious. 

The case in question involves two high school students who were drinking and smoking marijuana with 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 more than four times the legal limit to drive, and indicative of severe alcohol poisoning, court records state.

Hospital staff were conducting a sexual assault examination when the girl woke up. She said she had no memories after leaving the park. 

On March 24, 2016, the Court of Criminal Appeals found that because of the way the state’s sodomy law is written, “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.”

Tests found the boy's DNA on the back of her leg and around her mouth. He says she consented to performing oral sex. 

The reasoning, it seems, is that because the alleged rape was oral rather than vaginal, Oklahoma law does not apply.

The trial judge dismissed the case.

The Tulsa County Assistant District Attorney, Benjamin Fu, described the decision as "insane," "dangerous," and "offensive."

Fu said that he has learned of other defendants now making the same argument in other parts of Oklahoma in order to avoid charges.

Fu said that he and law enforcement officials plant to push for legislation to address the discrepancy in rape and sodomy laws.

Oklahoma's "rape in the first degree" statute is fairly comprehensive, applying to victims who are mentally ill, intoxicated, unconscious, physically coerced, or threatened with violence.

But the "forcible sodomy" statute only lists two barriers to consent: mental illness and violence.

The difference between the statutes might seem like a technicality, but it’s one that the appeals court took seriously, writing that they could not “enlarge a statute” in order to prosecute the boy.

But it isn't just Oklahoma with these alarming laws. Other states, such as Georgia, Kansas and Oregon, have similar laws.

Jennifer Gentile Long, CEO of AEquitas (The Prosecutor's Resource On Violence Against Women), said of the Oklahoma case, “There are still gaps in the ways laws are written that allow some cases to fall through the cracks. 

"This case seems to be one of them.”


Update, May 5
Rep. Scott Biggs, R-Chickasha, has introduced language into an existing bill that would amend the state's forcible oral sodomy law to include instances in which the victim is unconscious or intoxicated.

House Bill 2398 also changes the definition of sexual consent to state that consent cannot be given by a person who is asleep, physically incapacitated by drugs or alcohol, or is under duress, being threatened or being forced to perform a sexual act.