In March 2016, a criminal appellate court in Oklahoma affirmed a lower court's decision to not to bring charges of forcible sodomy or rape against an alleged assailant, because the state's laws pertaining to those crime did not cover circumstances in which the victim was intoxicated. due to the structure of the state's sexual assault law. The case as presented by prosecutors did not meet the standard for either forcible sodomy or rape charges, and the act of which the defendant was accused (forcible oral sex) didn't meet the standard for a rape charge in Oklahoma under the law as written.
An Oklahoma court did not rule that rape charges cannot be brought if the victim was intoxicated or unconscious, nor did the court rule that the incident referenced here failed to meet the standard of evidence required for rape charges solely (or primarily) because the reported victim was "drunk" or "unconscious."
On 23 April 2016, the investigative journalism web site Oklahoma Watch reported on a March 2016 decision handed down by the Oklahoma Court of Criminal Appeals regarding a lower court's earlier decision not to try a rape case due to the circumstances of the case and the provisions of the state's rape laws.
The case in question pertained to an incident that took place in the early morning hours of 1 June 2014 at a Tulsa park involving a then 16-year-old female victim (whose blood-alcohol level was later measured at .341) and a then 17-year-old male classmate. The defendant in the case transported the intoxicated teenaged girl to her grandmother's home, after which family members took her to a local hospital, where sexual assault examination allegedly revealed the presence of the male teenager's DNA on her person in a manner that suggested oral sexual relations (female on male) had occurred while the girl was heavily intoxicated or unconscious.
Oklahoma Watch reported that criminal charges were initially brought against the juvenile male, but those charges were eventually dismissed due to discrepancies between reported versions of events and the wording of Oklahoma's rape laws:
In an interview with police, the defendant said the victim engaged in consensual oral sex with him and it was her idea. The girl told officers she could not remember anything after being at the park.
Prosecutors initially charged the boy with first-degree rape and forcible oral sodomy, but because there was no evidence showing he had raped the girl, that charge was dismissed.
Later, Tulsa County District Court Judge Patrick Pickerill dismissed the forcible oral sodomy charge, stating unconsciousness and intoxication are not present in the law’s definition of the crime.
After the charges were dismissed, the criminal appellate court heard a state prosecutors' appeal of the dismissal, and on 24 March 2016 the appellate court affirmed the lower court's November 2015 decision [PDF]. In that "unpublished opinion" (not intended to set a legal precedent), the court of appeals ruled that the standard of evidence for the criminal charges brought by the prosecutor could not be met under the provisions of existing Oklahoma laws pertaining to rape and forcible sodomy, and they declined to find in favor of the prosecution for circumstances clearly uncovered by law:
The State's sole proposition of error is that the trial court erred in ruling 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. Finding no error, the State's appeal to this court is denied. The Legislature's inclusion of an intoxication circumstance for the crime of Rape is not found in the five very specific requirements for the commission of the crime of Forcible Sodomy. As set forth in Leftwich vs. State, we will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.
As the appellate court noted, the specific crime of sodomy in the state of Oklahoma (codified as a "detestable and abominable crime against nature") details five specific conditions under which a suspect may be charged with that crime:
1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or
2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or
3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or
4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or
5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system.
As the appellate court noted, intoxication was not one of the five "very specific requirements" encompassed by that law. The court's opinion held that the State's "proposition of error" was to try to include intoxication as a circumstance under which sodomy charges could be brought, which was not legally feasible under Oklahoma's extant forcible sodomy law.
Ben Fu, the prosecutor who argued this case before the Oklahoma Court of Criminal Appeals, told us that the the Court had previously held that the inability to consent was equivalent to the use of force for the purposes of forcible sodomy, but "they decided to disregard their own precedent without comment" in this case.
Many aggregated reports maintained that Oklahoma courts had ruled (or that Oklahoma laws held) an assault could not be considered rape if the victim was intoxicated. That was false: Oklahoma rape laws specifically allow for intoxication to be a circumstance under which vaginal and anal sexual contact may be considered rape. However, those laws also differentiate between oral sexual contact and other forms of sexual contact, with forcible oral copulation falling under the legal category of "forcible sodomy":
Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator [...]
Even legal analysts who disagreed with the court's ruling in theory acknowledged that it was congruent with existing sexual assault laws in Oklahoma. Two sexual assault law experts told The Guardian that the problem lies not with the decision of the appellate court, but rather with the wording of sexual assault laws in the state of Oklahoma:
Michelle Anderson, the dean of the CUNY School of Law who has written extensively about rape law, called the ruling “appropriate” but the law “archaic”.
“This is a call for the legislature to change the statute, which is entirely out of step with what other states have done in this area and what Oklahoma should do,” she said. “It creates a huge loophole for sexual abuse that makes no sense.”
Jennifer Gentile Long, who leads a group, AEquitas, that guides prosecutors in sexual and domestic violence cases, agreed. She said the Oklahoma law was an example of a gulf that still exists in some places between the law and evolving notions around consent and sexual agency.
Oklahoma has a separate rape statute that protects victims who were too intoxicated to consent to vaginal or anal intercourse, Long noted. But “there are still gaps in the ways laws are written that allow some cases to fall through the cracks,” she said. “This case” — because it did not involve vaginal rape but an oral violation — “seems to be one of them”.
As Oklahoma Watch originally reported, the case was so highly controversial because most parties believed that some sort of criminal charge ought to have applied to the incident. Oklahoma State Rep. Scott Biggs has since proposed "fixing the statute" to "define forcible sodomy in a way that includes unconscious victims."