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.

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