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Oklahoma court: it's not technically rape if it's oral and she's drunk

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An appeals court in Oklahoma has sparked a massive outcry after ruling that a 17-year-old couldn't be held legally responsible for oral rape because the victim was drunk and unconscious.

Oklahoma Watch reports that the 16-year-old victim was falling-down drunk and slipping in and out of consciousness, according to witnesses who were there. The Guardian reports that the young woman woke up in a hospital while being given a sexual assault exam, where her family had taken her after the defendant dropped her off.

The boy's DNA was found around the girl's mouth and on the back of her leg. He said she consented to oral sex. She said she had no memory of any of it, and the boy was charged with forcible oral sodomy.

But a 5-0 decision by a state criminal appeals court dismissed the case — because of a loophole in the state's laws on rape and sexual assault.

In Oklahoma, the definition of "rape" includes a victim being unable to consent to sex because they are too intoxicated or unconscious. But this definition of "rape" doesn't include oral rape. That falls under the definition of "forcible oral sodomy," and that definition doesn't actually include incapacitation in its list of examples of what "forcible" means.

"We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language," the appeals court wrote in an "unpublished" ruling not designed to set a precedent.

More than just a loophole?

Tulsa County District Attorney Benjamin Fu, who led the case, told the Guardian's Molly Redden he was "gobsmacked" by the ruling.

Other legal experts told Redden that they didn't really blame the appeals court. Instead, they blamed Oklahoma's outdated laws.

CUNY School of Law dean Michelle Anderson called the ruling "appropriate" but the law "archaic," and said it's time for Oklahoma to catch up to other states and change the statute. "It creates a huge loophole for sexual abuse, that makes no sense," she said.

But Fu basically argued that just because the loophole is there, doesn't mean the judges had to go through it.

"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."

Fu added that while the ruling wasn't supposed to set a precedent, he's learned that other defendants in Oklahoma are now trying to get acquitted on the same grounds.

Oklahoma State Rep. Scott Biggs (R-Chickasha) said Thursday that he plans to amend another bill in order to change the statute and protect victims. That's a necessary step.

But the whole thing is a reminder that it wasn't until 2012 that the FBI finally announced it was changing its archaic definition of "forcible rape" (which was, oof, "the carnal knowledge of a female forcibly and against her will,") to drop the word "forcible" and include male victims, oral or vaginal penetration of any kind, and oral penetration with a sex organ.

And whether or not you blame the Oklahoma appeals court judges in this particular case, it's a reminder that those who want to believe perpetrators and blame victims will use every tool at their disposal to do so — social stigma, legal loopholes, whatever. So it's important to strengthen our laws and keep at least some of those tools out of reach.

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