Loophole

Oklahoma court: Oral sex does not constitute rape when victim is unconscious

In a controversial ruling in a sexual assault case, an Oklahoma state court decided unanimously that oral sex does not constitute rape when the victim is unconscious. The case involved a 17-year old boy assaulting a badly intoxicated 16-year old girl whom he had given a ride home after a night of drinking in Tulsa Park. The girl, who was barely conscious was later brought to the hospital where a sexual assault examination was conducted and traces of the boy’s DNA were found on the back of her leg and around her mouth. While he later claimed that she had consented to oral sex, she told investigators she had no memories of anything that happened after leaving the park, and the boy was charged with forcible oral sodomy.

The case was thrown out by a trial judge, and his ruling was upheld by the appeals court, which wrote in its decision: “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, reasoning that the state’s statute on the use of force was silent on the issue of incapacitation due to alcohol intoxication. The Tulsa County district attorney in charge of the case, Benjamin Fu said the ruling left him “completely gobsmacked”, saying that he thought it was clear that the law implied that the use of force includes taking advantage of a victim being too intoxicated to consent, saying: “I don’t think the law was a loophole until the court decided it was.”

Other legal experts however say that it’s not the appeals court, but the archaic state laws that are to blame in this ruling. “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,” said Michelle Anderson, the dean of the CUNY School of Law, and an expert in rape law. “It creates a huge loophole for sexual abuse that makes no sense.” She also added that many states have started overhauling laws  to make them correspond more to the modern understanding of rape, saying: “There is a recognition that social mores have changed, that the law should now try to protect sexual autonomy as opposed to sexual morality.”

Read the full story at The Guardian.

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