An Oklahoma court has just ruled that oral sex when someone is unconscious from drinking alcohol is not considered rape.
“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 Oklahoma Court of Criminal Appeals said with regard to the way the sodomy law is written, Oklahoma Watch reported. Sodomy is defined as oral or anal sex; a sodomy law is one that defines certain acts of oral or anal penetration as crimes.
The decision was made regarding a case of a 17-year-old boy and 16-year-old girl; the two, along with friends of theirs, had been drinking and smoking marijuana, and the girl had consumed so much alcohol that her blood-alcohol level was indicative of severe alcohol poisoning. Friends present said, according to records as reported by the Oklahoma Watch, that she was drifting in and out of consciousness, and they all agreed the boy should drive her somewhere to stay. After dropping another friend off, the boy took the girl to her grandmother’s house, which is when she was taken to the hospital and had a sexual assault examination conducted — which showed the boy’s DNA on her leg and around her mouth, Raw Story reported. The boy says she consented to oral sex; the girl says she doesn’t remember anything after she left the park.
The boy was charged with first-degree rape and forcible oral sodomy. However, due to lack of evidence that he’d raped the girl, the rape charges were dropped, Oklahoma Watch reported. According to the rape law for the state, if a victim is intoxicated or unconscious, it can be considered rape. But because the forcible sodomy law doesn’t have that language, the forcible oral sodomy charge was also dismissed by Tulsa County District Court Judge Patrick Pickerill.
The Tulsa County district attorney who was leading the case, Benjamin Fu, criticized the decision, telling The Guardian that “the plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent. … 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.”
This ruling is extremely problematic, considering sexual assault absolutely occurs when a person is not capable of giving consent — and that includes when a person is asleep, unconscious, or heavily intoxicated, and includes any kind of sex (not just penetrative sex). The decision shows that even our courts have a poor grasp of sexual assault and consent.
To be clear, consent is absolutely fundamental in sex — and means all parties involved in a sexual encounter have expressed affirmation and enthusiasm about it. If you are confused about what consent is, or how to give it — which a recent Planned Parenthood survey showed that many Americans are — Zhana Vrangalova, PhD, a NYC-based sex researcher, writer, and educator who teaches Human Sexuality at New York University, explains all about it here.
Or, if you want a good analogy for what consent is, consider Teen Vogue’s “Unlsut” columnist Emily Lindin’s example of pizza. She writes:
Notice how a key factor in this analogy is that both parties in the situation are awake and conscious? Yeah, exactly. It’s clear the Oklahoma courts need to get a better grasp of what it means to give consent.
Related: Everything You Need to Know About Consent That You Never Learned in Sex Ed
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Sex Ed 101:
