Forced Oral Sex While Drunk Is Not Rape, Rules Oklahoma Court

In a ruling made public this week, an Oklahoma appeals court ruled that forcing oral sex on a person who is unconscious is not rape—or for that matter, a crime.

Under Oklahoma's current rape law, rape is defined as "an act of sexual intercourse involving vaginal or anal penetration" through which the victim meets any one of a number of circumstances, including having been threatened, not giving consent, or having been drugged. In Oklahoma, forced oral sex is not considered rape and falls under a separate set of laws—forcible sodomy—which have a very specific set of criteria. Being too intoxicated to consent is not one of them. The court ruled in a unanimous decision that they would "not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language."

The case involves two juveniles, so court records regarding the trial have been sealed. What is known is that a 16-year-old girl was drinking with friends in a park. It's alleged that a 17-year-old-boy volunteered to give the girl a ride home because the girl was very intoxicated. According to the Guardian, the boy brought her to his grandmother's house; she was later taken to the hospital while she was unconscious. Her blood alcohol level was .34. Hospital staff performed a rape kit on the girl and found that she has semen on the back of her leg and around her mouth. She claims she has no memory of what happened after leaving the park.

The boy claims the sex act was consensual. Tulsa prosecutors charged him with forcible sodomy, but a trial judge dismissed the case. On March 24, an appeals court affirmed the trial judge's ruling. "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," the appeals court ruled.

The Tulsa County district attorney on the case was not immediately available for comment.

"It's very odd to say that a victim who is unconscious cannot be victimized," says Katharine Baker, a law professor at the Chicago-Kent College of Law who specializes in women's issues and sexual violence against women. Baker points out that it's not uncommon for states to make distinctions around types of sex acts (intercourse versus oral penetration, for example), or for punishments to vary accordingly. An act on an unconscious victim, she says, is still criminal.

"Why is it that having intercourse with someone who is unconscious is clearly illegal, but sodomizing that person is not?" Baker asks. "The nature of the criminal act here is violating another's sexual autonomy or integrity without their consent. This [ruling] would suggest that someone could go into [the room of] someone who's passed out on her bed after going to a party and forcibly sodomize her… and that's not criminal?"

The ruling comes at a time when high schools and universities all over the country are clarifying codes of conduct around consent—both what it means and what punishments violating it will incur. According to the It's On Us campaign, which President Obama launched in 2014 to increase awareness around campus sexual assaults, an estimated one in five women is sexually assaulted while in college, and only 12 percent of those assaults are reported.

"Young people are very vulnerable to mistakes about alcohol use, which can render them partially to fully unconscious," says Baker. "At those times, they are particularly vulnerable to sexual predation by their peers, who want sex to be theirs for the taking."