Unconscious, where you can’t make decisions because you are not awake.
In an Oklahoma court, a decision was made that states the law doesn’t criminalize oral sex with a victim who is completely unconscious. The ruling is, of course, sparking outrage because critics say the judicial system was engaged in victim-blaming and believing outdated notions in regards to rape.
The case involved allegations between a 17-year-old boy and a girl, 16. She claims he assaulted her after volunteering to give her a ride home. The two were drinking at an amusement park with a group of friends when she became clearly intoxicated to the point of becoming unconscious.
The boy took the girl to her grandmother’s house and she was still unconscious, so she was taken to the hospital. Her blood alcohol content was above .34 and she awoke while the staff was conducting the sexual assault exam. Tests would later find his DNA on the girl on the back of her legs and around her mouth. The boys response? The girl had consented to performing oral sex. But it’s kind of hard to consent when you are unconscious and more importantly she didn’t have any memory of leaving the park including the sex acts.
The boy was then charged with forcible oral sodomy and this is where it gets interesting.
The trial judge dismissed the case stating “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.” Its reasoning was “that the statute listed several circumstances that constitute force, and yet was silent on incapacitation due to the victim drinking alcohol.” As a result, they will not justify prosecution of a person beyond the correct meaning of its language.
This decision shocked many including the District Attorney, who said
“The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent. 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.”
No one is faulting the judicial system because the way the law has been written is archaic with a huge gap and legislators in Oklahoma need to re-write this law.
Michelle Anderson, the dean of the CUNY School of Law said in regards to this decision,
“This is a call for the legislature to change the statute, which is entirely out of step with what other states have done in this area and what Oklahoma should do. It creates a huge loophole for sexual abuse that makes no sense.”
The good thing about this is that Benjamin Fu, the Tulsa County district attorney will push for lawmakers to make a change to the code to make sure that the law protects sexual autonomy and that the state falls in line with the modern understanding of rape.
Featured Image via Flickr