In what can only be described as a ruling intended to legitimize rape culture and blame-the-victim legal processes, an Oklahoma court has ruled that if a victim is incapacitated by alcohol and has oral sex forced on her, it's not a criminal act.
The case involved a 16-year old girl who was drinking in a park with some others, and passed out. One of the boys "volunteered" to drive her home.
Via Raw Story:
The boy later brought the girl to her grandmother’s house. Still unconscious, the girl was taken to a hospital, where a test put her blood alcohol content above .34. She awoke as staff were conducting a sexual assault examination.
Tests would later confirm that the young man’s DNA was found on the back of her leg and around her mouth. The boy claimed to investigators that the girl had consented to performing oral sex. The girl said she didn’t have any memories after leaving the park. Tulsa County prosecutors charged the young man with forcible oral sodomy.
But the trial judge dismissed the case. And the appeals court ruling, on 24 March, affirmed that prosecutors could not apply the law to a victim who was incapacitated by alcohol.
This makes no sense to me. First, that they would differentiate on the sole basis of alcohol. What about drugs? What if she mixed the two? How is it any less forcible oral sex because she was unconscious?
The prosecutor was plainly shocked.
Benjamin Fu, the Tulsa County district attorney leading the case, said the ruling had him “completely gobsmacked”.
“The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent,” Fu said. “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.” To focus on why the victim was unable to consent, he continued, puts the victim at fault.
Others say the law is the problem, that it's written in such a way that it allows for a loophole big enough to drive a penis through. While there are laws on the books to prosecute in instances where the victim is too intoxicated to consent to intercourse, there is no protection for forced oral sex. Apparently it's only a crime in Oklahoma if the victim is aware that the act is being performed.
I won't be holding my breath waiting for Oklahoma to update its laws. But remember this the next time you hear Kasich say that girls who don't want to be raped shouldn't drink.
