A criminal appeals court in Oklahoma recently dropped the charges against a teenage boy who was accused of forcing an intoxicated girl to perform oral sex.
The state’s definition of forcible sodomy includes five conditions under which the crime can occur. None of those conditions explicitly covers intoxication or unconciousness, though the state’s definition of rape does.
Oklahoma lawmakers are now scrambling to amend the state’s law on forcible sodomy after the ruling provoked national outcry.
Critics have lambasted the court for upholding laws they are calling outdated and say blame victims and obscure the meaning of consent. Benjamin Fu, Tulsa County’s assistant district attorney, told the Oklahoma Watch that the court’s ruling was “insane,” “dangerous,” and “offensive” toward those who have been sexually assaulted.
“[Survivors’] biggest fear is that people they tell the story to won’t understand or will judge them for their behaviour,” Fu said. “If they had that concern, the Court of Criminal Appeals affirmed that, 5-0. All this does is add to the fire.”
Oklahoma Rep. Scott Biggs said in a statement released Thursday that the judges who worked on the case made a “grave error” in the ruling but that legislators would work to expand the law’s definition of forcible sodomy to include unconscious victims regardless.
Legislators could begin considering the new language as early as next week, the Associated Press reported.
“I am horrified by the idea that we would allow these depraved rapists to face a lower charge simply because the victim is unconscious,” Biggs said in the statement. “Unfortunately, legal minds often get stuck on questions of semantics, when it is clear to most of us what the intent of the law is.”
Legal experts say that the court’s ruling was justified and that it is Oklahoma’s laws that need to be updated to reflect society’s shifting ideas on sexual autonomy and consent.
While prosecutors had argued that the meaning of “forcible sodomy” should logically include taking advantage of a victim who was unable to consent, Michelle Anderson, dean of CUNY’s law school, told The Guardian that the law’s lack of specificity surrounding intoxication “created a huge loophole for sexual abuse that makes no sense.”
“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,” Anderson said.
In the case, the events of which occurred in 2014, a 17-year-old boy and a 16-year-old girl had both been drinking at a park in Tulsa with friends when the girl was brought to the boy’s car, then driven to her grandmother’s house. The friends who were present later testified that the girl had been drinking vodka and was stumbling and drifting in and out of consciousness, the Oklahoma Watch reported. It has not been reported where the assault occurred.
The girl’s family then brought her to a hospital, where the staff conducted a sexual-assault examination and found the boy’s DNA on her. The girl told the police she had no memory of anything that happened after she left the park.
The forcible sodomy charge brought against the boy was dismissed by a judge last November. When prosecutors appealed, the court unanimously upheld the judge’s original ruling on March 24.
“The Legislature’s inclusion of an intoxication circumstance for the crime of rape … is not found in the five very specific requirements for commission of the crime of forcible sodomy,” the ruling said. “We will not, in order to justify prosecution of a person for an offence, enlarge a statute beyond the fair meaning of its language.”
After the ruling, the defendant’s attorney Shannon McMurray told the Oklahoma Watch the prosecutors handled the case poorly.
“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. “You can’t substitute force with intoxication under the law.”