The XX Factor

Oklahoma Court: Making an Unconscious Victim Perform Oral Sex Isn’t Sexual Assault

The court said being unconscious and intoxicated did not mean the alleged victim did not consent to oral sex.

It’s hard to out-daft the Oklahoma state legislature. In recent months, what is almost certainly the country’s most sadistic and ignorant lawmaking body has proposed banning HIV-positive people from marrying, preventing depressed suicidal queer youth from seeing gay-affirming therapists, and mandating anti-abortion education in public schools. Any day now, the state could authorize a (100-percent unconstitutional) law that would revoke the medical license of any doctor who performs an abortion.

But the Oklahoma Court of Criminal Appeals is proving to be a formidable competitor to the legislature in the state government’s race to the bottom. Last month, the court ruled 5-0 that a boy who allegedly put his genitals in the mouth of an unconscious, intoxicated victim did not commit the crime of forcible sodomy. Oklahoma prosecutors and anti-rape advocates say the ruling is a miscarriage of justice that defies both common sense and decades of legislative and judicial progress on sexual assault.

The case involves a 2014 incident between two high-school students, a 17-year-old boy and a 16-year-old girl. The two were drinking with friends in a park; witnesses said the girl was stumbling and falling, and two boys had to carry her to the alleged perpetrator’s car so he could drive her home. One boy who was with the alleged victim and perpetrator in the car for a short period said the girl was unconscious at times. Blood tests later found her blood-alcohol content to be .341, high enough to cause a severe case of alcohol poisoning. Medical practitioners who performed a sexual-assault forensic exam found the boy’s DNA on her leg and around her mouth. He said she’d performed oral sex on him, that it was consensual, and she’d suggested it in the first place. She said the last thing she remembered was drinking in the park.

Prosecutors charged the defendant with rape and forcible oral sodomy, but a judge dismissed the rape charge since Oklahoma’s rape statute only applies to vaginal and anal penetration, and there was no hard evidence of either. Another judge dismissed the forcible sodomy charge because the law does not specifically note that an intoxicated person cannot give consent, and an unconscious person cannot, by definition, resist sexual contact enough to require a perpetrator’s force. Tulsa County assistant district attorney Benjamin Fu appealed that ruling but was rebuffed on March 24 by the criminal appeals court.

“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,” Shannon McMurray, the defendant’s lawyer, told Oklahoma Watch, suggesting that a lesser charge of sexual battery would have been more appropriate. In its decision, the appeals court agreed: “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.”

But the state’s rape law does list a victim’s intoxication as a factor that constitutes force. Fu told Oklahoma Watch that, by ruling that the girl’s debilitating intoxication precluded the possibility of force, the court was subjecting the crime to an “orifice test.” If all the facts of the encounter had been the same, but the alleged perpetrator had penetrated the victim’s vagina or anus, it would have been considered first-degree rape, which is applied the same in the case of an unconscious victim as it is in the case of a forcible rape of a conscious victim. But because the area of penetration was the victim’s mouth, the encounter wasn’t considered sexual assault at all.

Fu compared this case to a breaking-and-entering charge, which would be valid even if the perpetrator entered a home through an unlocked door. This is a solid analogy, but the fact that a prosecutor had to liken an unconscious woman to an unlocked house in order to make his point underlines just how harshly the court’s ruling dehumanizes sexual-assault victims. In this case, the court faults the alleged victim for her own assault; if she had been conscious when the alleged perpetrator forced oral sex on her, it would have been deemed a legitimate crime.

The decision rests on multiple retrograde, largely rejected notions of rape: that oral rape is less serious than vaginal or anal rape, that it’s not rape if a victim doesn’t fight back, and that intoxicated victims are untrustworthy and responsible for their own violation. There’s only one piece of consolation here: Because the court of appeals’ ruling is an “unpublished opinion,” other judges can’t cite it as precedent in future cases. But victims don’t need judicial precedent for a wrongheaded court decision to dissuade them from bringing charges against their rapists.