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A Lawyer Explains the Terrible Oklahoma Law Making Oral Sex with an Unconscious Person Legal

Are attitudes about sexual assault uniquely heinous in this prairie state, or was it just a mistake?

Photo via Flickr user Joe Gratz

On June 1, 2014, a 17-year-old boy and a 16-year-old girl were drinking in a Tulsa, Oklahoma, park. The girl drank such large quantities of vodka that her blood alcohol content rose above .34––over four times the legal limit for drivers. As she slipped in and out of consciousness, the boy carried her to his car, and at some point, the girl performed oral sex. Later, she woke up at her grandmother's house and was eventually taken to a hospital, at which point she regained consciousness.


At first, prosecutors charged the boy with first-degree rape and forcible oral sodomy, but there wasn't enough evidence to convict him. And as the Guardian reported this week, the state appeals court in March issued a stunning declaration when upholding the non-conviction: Forcing oral sex on someone who is unconscious doesn't count as rape.

The legal loophole is actually pretty easy to explain: In Oklahoma, there are five very specific definitions of forcible oral sodomy, and none of them mention alcohol or drugs. Therefore, the judges wrote in their decision that they would not, "in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language."

John F. Wilkinson, an attorney at the legal group AEquitas, which helps prosecutors build sexual assault cases, says that when he heard about the decision, he "literally gasped." But he tells me that the law isn't necessarily a reflection of the prairie state's archaic viewpoints on sexual assault. Instead, he suggests this may have just been an accident. Wilkinson points to the state's statutes, which say that a person can't consent to vaginal or anal sex if they get drunk to the point of "unsoundness of mind." The problem is that language simply doesn't appear in the definition of "forcible oral sodomy," which is classified as its own distinct crime.

"Every state's weird," Wilkinson says. "Some states don't explicitly cover voluntarily intoxication and only surreptitious intoxication––someone slipping you something. It might have been people were expecting the court to find that this obviously would be covered, but it literally is not explicitly stated in the statute."

Wilkinson suspects this is probably the result of the "patchwork" way America has constructed laws governing sexual assault. As views on rape evolve, the definition becomes broader, and fixes are applied state by state. For instance, marital rape is still quasi-legal in a handful of states, and laws are slowly being created to address LGBT rape.

The attorney believes Oklahoma is the only state with this bizarre exception for nonconsensual oral sex and drunkenness, but says it could easily be closed. Indeed, State Representative Scott Biggs posted on Facebook Thursday that the loophole could be closed as soon as next week.

"There are a lot of consequences that come from getting voluntarily intoxicated," Wilkinson says. "You get drunk, you fall down, you get a hangover. But getting raped is not a consequence of being drunk."

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