Oklahoma Court: Oral sex with an intoxicated, unconscious person not "forcible sodomy"

People across Oklahoma and across the nation are outraged by a court ruling that upheld the dismissal of a forcible sodomy charge against a teen who allegedly had oral sex with a fellow teenager who was intoxicated, unconscious, and unable to provide consent to the sex act.

In the case, a 17-year-old boy was charged with first degree rape, second degree rape as an alternative charge, and forcible sodomy after he took heavily intoxicated 16-year-old girl home from drinking with friends at a Tulsa park. When the girl arrived at her grandmother's house, she was unconscious and transported to a local hospital, where she was found to have a blood alcohol concentration of 0.34 percent. She regained consciousness as hospital staff conducted a sexual assault examination. The exam revealed the boy's DNA around the girl's mouth and on the back of her leg.

Police interviewed the boy, who said that the girl consented to oral sex; however, prosecutors say that the girl was so intoxicated, falling in and out of consciousness, that she could not possibly be able to provide consent. The girl says that she does not remember anything after leaving the park.

The rape charges were dismissed, but the 17-year-old, identified in court records as RZM, was charged as a youthful offender with forcible sodomy. His defense lawyer argued that he could be charged with forcible sodomy because the act was not forced, and state law does not provide alcohol intoxication as a condition of force in oral sodomy cases (it does, however, allow for first degree rape charges if a person has sexual intercourse with a person who is "unconscious of the nature of the act" or who provides an intoxicating substance as a means of accomplishing the act).

The court dismissed the forcible sodomy charge against the teen, and the Tulsa County District Attorney's Office appealed. Benjamin Fu, Tulsa County assistant district attorney and director of the office’s special victims unit, said that the Tulsa County District Court erred by failing to consider the girl's intoxication as means of force, saying that if the teen had sexual intercourse with the girl rather than oral sex, he would have been criminally charged:

"My argument was that if you rule today that because she was intoxicated it can’t be force, then … you’ll have to engage in what I can only refer to as the ‘orifice test, whereby the contact by the defendant and the state of mind of the victim are the exact same. It just depends on (the location of the sexual act)."

Despite prosecutors' arguments, the Oklahoma Court of Criminal Appeals upheld the lower court's decision. Although the decision is unpopular, the fact is that the court's job is to uphold state laws--not to connect the dots, make assumptions regarding intent, or rule based on popular opinion. And in this case, while state law allows intoxication as an indicator of rape, it does not allow intoxication as a condition of forcible sodomy:

"The State's sole proposition of error is that the trial court erred in ruling that 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. Finding no error, the State's appeal to this Court is denied. The Legislature's inclusion of an intoxication circumstance for the crime of Rape, 22 O.S. § 1111(A)(4), is not found in the five very specific requirements for commission of the crime of Forcible Sodomy, 22 O.S. § 888(B). As set forth in Leftwich v. State . . . we will not, in order to justify the prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language."

And it is that last statement which justifies a ruling that many people will find uncomfortable. The court will not and should not "enlarge a statute beyond the fair meaning of its language." It would be unconstitutional to prosecute someone for violating a law we wish existed.

Image credit: Matthew

Comments