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Oklahoma court says forced oral sex is not rape if victim is drunk, unconscious

File photo. Alfonso Cacciola/E+

A Tulsa County prosecutor said he was “completely gobsmacked” after an Oklahoma appeals court ruled that forced oral sex is not rape if the victim is intoxicated and unconscious.

The appeals court ruling stems from alleged sexual assault involving a 17-year-old boy and a 16-year-old girl in 2015.

According to The Guardian, the teens had been drinking in a park with some friends in April 2015 when the girl became highly intoxicated and the boy volunteered to drive her home.

According to the newspaper, witnesses said the intoxicated teen had to be carried to the boy’s car.  Another boy, who was in the car for a short time said he recalled seeing the girl lapsing in-and-out of consciousness during his brief drive home.

The accused then took the drunk teen to the girl’s grandmother’s house for a short time, The Guardian reported. Still unconscious, the girl’s family took the teen to a Tulsa hospital.

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According to the Oklahoma Watch, the female had consumed a large amount of vodka and blood tests revealed her blood-alcohol was more than four-times the legal limit to drive a vehicle. A sexual assault exam was also performed on the girl.

Citing court records, the Oklahoma newspaper reported the boy’s DNA was found on the girl’s body. During a police interview, the accused said the girl engaged in consensual oral sex and that it was the victim’s idea. The girl said she had no recollection of anything after being at the park, the Oklahoma Watch reported.

The boy was charged with first-degree rape and forcible oral sodomy. However, the rape charge was dismissed because there was no evidence showing he had raped the teen.

Last month, an appeals court ruled that “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 court wrote in its ruling.

The case was brought to appeals court after a judge tossed out the case in November.

“Finding no error, the State’s appeal to this court is denied,” the court wrote. The court explained that while Oklahoma’s law says that rape can occur when the victim is drunk or unconscious, forcible sodomy law does not share the same language.

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“The Legislature’s inclusion of an intoxication circumstance for the crime of rape, is not found in five very specific requirements for commission of the crime of forcible sodomy,” reads the ruling.

Oklahoma defines rape as “an act of sexual intercourse involving vaginal or anal penetration.” The act of oral sex is not mentioned in state law. However, according to Oklahoma Uniform Jury Instructions, “No person may be convicted of forcible oral sodomy unless the State has proved beyond a reasonable doubt each element of the crime.” Among the elements are: “committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent.”

Speaking with The Guardian, the Tulsa County district attorney leading the case, called the ruling “insane.”

“The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent,” Benjamin Fu told the newspaper. “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.”

Shannon McMurray, the defendant’s lawyer, told the Oklahoma Watch the prosecutors handled the case poorly and sexual battery would have been more of an appropriate charge.

“They 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 told the newspaper. “The court agreed what the state was attempting to do was rewrite statute and add an element.

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“You can’t substitute force with intoxication under the law,” McMurray told the newspaper.

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