oklahoma

Illustration via Max Fleishman (Licensed)

Legal loopholes can be a dangerous thing.

This article contains descriptions of explicit sex crimes.

It's almost too horrible to believe. 

An appeals court in Oklahoma last month agreed with a 2015 juvenile court decision not to convict a 17-year-old boy for allegedly forcing a 16-year-old girl to perform oral sex while she was unconscious from intoxication.

The ruling came to light this week thanks to a report from the Guardian headlined, “Oklahoma court: oral sex is not rape if the victim is unconscious from drinking.” And one line from the ruling has sparked outrage across the Internet: “Forcible sodomy,” the decision reads, “cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation.”

Wait, what? Could a U.S. state, in the year 2016, really be so backward as to allow someone to rape another person just because the victim was too drunk?

Well, not exactly.

Oklahoma does outlaw rape. It also outlaws forced oral sex—that's not the issue. The issue is that the specific wording of Oklahoma law pushes this case into a legal loophole.

Oklahoma is among 14 states that outlaws oral sex under a law against “sodomy,” despite a 2003 Supreme Court decision, Lawrence v. Texas, which found such laws unconstitutional. As attorney Ken White writes at Popehat, “Oklahoma, like most states, separates unlawful anal or vaginal penetration from unlawful oral penetration.” Under Oklahoma law, forced oral sex falls under the category of “the detestable and abominable crime against nature.”

More specifically, Oklahoma law defines “forcible sodomy” as:

1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or

2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or

3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or

4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or

5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system.

So that's Oklahoma's forcible-sodomy law. The state's law against rape is an entirely different piece of legislation, and it only applies to forcible anal or vaginal penetration. Under that law, it is illegal for a perpetrator to penetrate a victim who “is at the time unconscious of the nature of the act and this fact is known to the accused.”

(Side note: Oklahoma's law also only applies to people who are “not the spouse of the perpetrator,” but that's another debate entirely.)

The issue here is that this case falls in the nether region between the state's “rape” and “forcible sodomy” laws. Forced oral sex is not “rape” under Oklahoma law, even though oral sex is outlawed in other scenarios. And intoxication does not fall under the category of “unsoundness of mind of giving legal consent,” as the forcible-sodomy law specifies.

This is why the court ruled that forced oral sex while the victim is intoxicated “is not found in the five very specific requirements for commission of the crime of Forcible Sodomy.” 

Now, an attorney could likely argue that inserting a penis into an unconscious person's mouth would require a “means of force,” to one degree or another. But the lawyers in this case appear to have not successfully argued that point.

White also points out that the defendant could have instead been charged with sexual battery, which Oklahoma law defines as “intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner ... [w]ithout the consent of that person.”

Michelle Anderson, dean of the law school at the City University of New York, explained to the Guardian that for a court to convict someone of the crime in this case under the state's rape or forcible-sodomy laws, lawmakers would have to rewrite the statutes.  As it currently stands, Anderson said, the law “creates a huge loophole for sexual abuse that makes no sense.”

If you are a victim of sexual assault or want more information on sexual assault, contact the Rape, Abuse & Incest National Network at 1-800-656-HOPE (4673). If you are a victim of domestic abuse or want more information on domestic violence and resources for victims, contact the National Domestic Violence Hotline online or at 1-800-799-SAFE (7233). 

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