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US court rules oral sex with someone so drunk they're “completely unconscious” is not a crime

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Amy Swales
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A court in the US state of Oklahoma has ruled that oral sex with a person who is “completely unconscious” through alcohol cannot be classed as forced.

The Oklahoma Court of Criminal Appeals' ruling, the result of an appeal against the dismissal of the original case in November, stated “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 current law on forcible sodomy in Oklahoma was said to not be applicable because of the wording and therefore couldn't be used when the victim was incapacitated through alcohol. Forcible sodomy covers both oral and anal penetration, but often refers to forced oral sex, as forced anal sex can be prosecuted as rape in the state.

The case concerned two high-school students who had been drinking vodka in a park with friends. A 17-year-old boy allegedly assaulted a 16-year-old girl after offering to drive her to her grandmother's house. Witnesses, including another boy who was also given a lift, said the girl had been stumbling, unable to walk and drifting in and out of consciousness, having to be carried to the car.

After being taken to her grandmother’s house, she was taken to hospital where a sexual assault examination was carried out and, as The Guardian reports, tests later showed the defendant's DNA on her leg and around her mouth.

The defendant said the girl had consented to oral sex, while she told police she couldn't remember anything after the park. He was charged with forcible oral sodomy. An initial charge of rape was dismissed through lack of evidence.

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The Tulsa County District Attorney’s Office appeal was denied last month on the grounds that unconsciousness due to alcohol was not listed among the various circumstances that the Oklahoma law says constitutes force. The ruling said: “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”

According to The Guardian, Tulsa County district attorney Benjamin Fu said he was “completely gobsmacked” by the denial: “The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent.

“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.”

While many are similarly aghast at the court's decision and believe it's contributing to and symptomatic of a culture of victim blaming, others say legally it's the correct judgement, and that it's the law itself that needs to be updated.

According to Oklahoma Watch, the defendant’s attorney, Shannon McMurray, said a charge of sexual battery would have been more appropriate as there was no “evidence of force […] other than she was too intoxicated to consent”.

She said: “[The 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.

“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.”

Fu added that while the ruling was not officially a precedent, he knows of other defendants now using the same argument in similar cases.

Images: iStock

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Amy Swales

Amy Swales is a freelance writer who likes to eat, drink and talk about her dog. She will continue to plunder her own life and the lives of her loved ones for material in the name of comedy, catharsis and getting pictures of her dog on the internet.

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