A few days ago, the Oklahoma Court of Criminal Appeals ruled, essentially, that there is no law against forcible oral sex with an unconscious person. A good recap of the story can be found here. Facebook became enraged! “How could they!” “What idiots!” the mob stormed. Here’s the thing: The Court was right. For those that are unfamiliar with the current makeup of the Court of Criminal Appeals, they are almost all conservative. They almost always side with conviction. Even when the prosecution screws up, sometimes very majorly, they almost always uphold the conviction based on what they deem to be “harmless error”. Putting aside the fact that the whole theory of “harmless error” encourages prosecutors to take shortcuts and makes appellate courts guess if prosecutor cheating affected the jury’s decision, this Court does not overturn cases unless there are glaring problems.
In this particular case, a 17 year old boy and a 16 year old girl were both drinking with a group of friends in a local park. The girl became quite intoxicated and had to be carried to the car of the Defendant, who took her to his grandmothers house. Later on in the evening, the girl had to be taken to the hospital where here blood alcohol content (BAC) was .34 (very, very drunk). They did a rape kit and found evidence of semen around her mouth and the back of her legs. She remembers none of it.
21 O.S. 888:
B. The crime of forcible sodomy shall include:
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.
At first glance, someone that is intoxicated or unconscious could conceivably fall under B(2). But then we look to a similar statute for Rape:
A. 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 under any of the following circumstances:
1. Where the victim is under sixteen (16) years of age;
2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;
3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;
4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;
5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;
6. Where the victim submits to sexual intercourse under the belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief. In all cases of collusion between the accused and the spouse to accomplish such act, both the spouse and the accused, upon conviction, shall be deemed guilty of rape;
7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim;
8. Where the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system; or
9. Where the victim is nineteen (19) years of age or younger and is in the legal custody of a state agency, federal agency or tribal court and engages in sexual intercourse with a foster parent or foster parent applicant.
B. Rape is an act of sexual intercourse accomplished with a male or female who is the spouse of the perpetrator if force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person.
The legislature saw fit to include both narcotic induced intoxication (A4), and unconsciousness (A5). A long standing rule of statutory construction tells us that the “legislature is never presumed to have done a vain thing”. Essentially this means that if the legislature makes a list of things that are prohibited in one statute, but fails to include the entire list in the other statute, we assume they did so for a reason and intended to exclude those reasons. It all boils down to this: The LEGISLATURE is the one who screwed up here, not the Court.
Clearly this is not a defense for a man forcing himself on an unconscious woman. If you can’t agree that’s wrong, you need more help than I can give you. The legislature should fix that part of the statute. The problem I see is that, in this case, I don’t know if that would have helped either. There was no evidence that she was unconscious at the time of the sexual act. Just that she didn’t remember. We have to be really careful what happens here. There is a fine line between two people, both intoxicated, doing something they later regret or don’t remember. At what point do we put too high of a burden on the drunk male, because he is a male, to be the one that stops the sexual act? Are we still in the dark ages of presuming that any sexual act between a man and a woman, the man is the one taking advantage of the situation? Are we still under the misguided belief that women don’t like or pursue sex, and are more likely to do so when they are intoxicated? It makes no sense to me to be able to charge a man with a crime of forcible oral sodomy, when both are drunk, if she is on top giving HIM oral sex…does it you?
We have to stop criminalizing behavior we find distasteful. Would the world be a better place if people didn’t go get drunk at the bar and make stupid decisions? Sure. Is this going to stop anytime soon? Of course not. But ruining a guys life, because a drunk girl gave him a blowjob, just isn’t right.