Everything Wrong With Oklahoma Saying Forced Oral Sex Isn’t Rape

A legal loophole has allowed a likely rapist off the hook for penetrating his victim because the orifice he chose happened to be her mouth.

The Oklahoma Court of Criminal Appeals this week denied an appeal from the Tulsa County District Attorney’s Office to overturn a March 24 decision that dismissed their case against an unnamed 17-year-old male for First Degree Rape and Forcible Oral Sodomy. The decision reads, in part:

“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.”

In short: unconscious ≠ forcible sodomy, full stop.

In Oklahoma, the definition of rape (O.S. § 21–1111) includes explicit clauses criminalizing sexual acts with people who are intoxicated, unconscious, or otherwise unable to consent. The detail with which scenarios deemed rape by the state are outlined is both commendable and heartbreaking in their necessity. The same attention was not given to the “forcible sodomy” statute (O.S. § 21–888), which fails to specifically name incapacitation/intoxication as a factor.

The court acknowledged the five circumstances that constitute force in order to point out that there is no clause concerning incapacitation due to the victim’s alcohol consumption, concluding:

“We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”

The court is concerned that calling complete incapacitation — and therefore complete inability to give consent of any kind — “force” will “enlarge a statute.” If that isn’t shocking enough in generalities, the circumstances of what should be a slam dunk conviction even in our rampant rape culture will blow your mind.

As reported by Molly Redden at The Guardian, the accused had been drinking at a party with the victim, a 16-year-old female classmate. Multiple witnesses say the victim was so intoxicated that she had to be carried to his car, and another passenger confirmed she was in and out of consciousness during the ride.

Redden describes the attack and the evidence:

“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.”

We demand an unattainable level of appropriate “victim behavior” as well as witness and physical evidence to believe a sexual assault victim; this case has everything rape culture deniers and law enforcement says are necessary to press charges and even convict. Multiple people saw her state of incapacitation over a lengthy period of time; SHE WOKE UP in the hospital to the exam, indicating to medical personnel that she had been unconscious; and the all-important, indisputable DNA was present in multiple locations on her body. The case had everything except an explanation in the statute that explains to the court that an unconscious person cannot consent and therefore any act performed on them — whether or not they remember it — is assault and/or rape, no matter the point of entry.

The accused’s defense attorney Shannon McMurray’s “well of course” style response to the ruling highlights another problem: a fundamental lack of understanding about what the word “sex” is and isn’t.

“They (prosecutors) were trying to substitute one element for the other, meaning intoxication in the rape statute, when there was absolutely no evidence of force or him doing anything to make this girl give him oral sex other than she was too intoxicated to consent,” McMurray said.

“No evidence of force” other than her incapacitatingly extreme blood alcohol level of .341 — a category that qualifies medically as severe alcohol poisoning. McMurray needs more to believe that the DNA left in multiple places by her client wasn’t deposited by request. She doesn’t think prosecutors had any standing to apply the incapacitation clauses in the rape statute to the forced sodomy statute. As she put it: “The court agreed what the state was attempting to do was rewrite statute and add an element. You can’t substitute force with intoxication under the law.”

It must be all in our minds the way predators target people who’ve been drinking and drug those who haven’t had enough to be compliant. Chemicals can’t be used as restraints, according to McMurray. She uses the phrase “give him oral sex” without any realization that she has implied that the victim would have been able to perform an act while unconscious and that she has explicitly stated that said act is in fact sex. But she thinks the statute that covers unwanted sex doesn’t apply here.

This is a bit too close to trying to define what “is is.”

Saying that the rape statute only applies to “vaginal or anal penetration” is not just alarmingly heteronormative (even if you conceded that the perpetrator “may be of the same or the opposite sex”), it leads to a huge gray area that both discounts how sexual activity happens between people and necessitates each act in that gray area to have its own statute. It also leads survivors like me to question if they were “raped enough” or “assaulted enough” or if what happened to them is even reportable.

The lead district attorney on the case, Benjamin Fu — who says he’s “completely gobsmacked” by the ruling — is pushing for action in the legislature to remove any doubt that the reason for the victim’s inability to consent shouldn’t prevent them from seeking justice.

“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.”

Fu has allies in the statehouse, including former prosecutor Rep. Scott Biggs (R-Chickasha), who vowed to give the court what it’s asking for while throwing plenty of how-is-this-even-necessary shade.

“I am horrified by the idea that we would allow these depraved rapists to face a lower charge simply because the victim is unconscious,” said Biggs. “I think the judges made a grave error, but if they need more clarification, we are happy to give it to them by fixing the statute.”

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As so often with cases involving sexual assault, as a survivor I’m left comparing the need for explicit clarity to other laws where the victim is in some way violated. It’s hard to imagine that a case involving the theft of a purse or wallet would come down to whether you had said item stashed in a backpack, a parked car, or on a barstool next to you. Theft is theft is theft. If the stolen item is recovered amongst someone else’s property, the legal system only cares that you didn’t give that person permission to have it.

We don’t just have a problem with not believing survivors; we have a problem with the definitions of sex, sexual assault, rape, and every act on those spectrums. Many thanks to the Oklahoma legislators who are seeing that this particular injustice doesn’t happen again, but it’s going to take more than that. We need law enforcement, judges, and legislators educated on consent and our youth to grow up with comprehensive sexual education.

Until we can talk about what wanted sexual advances look like, we’re going to continue having issues discussing violations to people of all genders.

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Lead image: flickr/Tim Evanson