Oral Sex Isn't Rape If the Victim's Passed Out Drunk, Oklahoma Court Rules

An Oklahoma court has some strange opinions when it comes to rape law or, more specifically, what circumstances of an assault do and don't legally constitute sexual assault.

A Tulsa County judge dismissed the case, which involved two high school students, last November on the grounds that Oklahoma statutes do not criminalize forcing an unconscious person to perform oral sex.

Tulsa County District Attorney's Office appealed that ruling in March – and it was again struck down by an Oklahoma court.

The decision has sparked anger among many who say it just feeds a system of victim blaming, wherein a whole set of criteria — alcohol consumption, behavior, sexual history, clothing at the time of the assault — throws the legitimacy of a person's claim of rape into question.

In this case, a 17-year-old boy – identified in court documents as RZM – offered to drive a 16-year old girl home after the two had been drinking and smoking pot in a Tulsa park with a group of friends. Witnesses at the park described the girl as drinking a large quantity of vodka, and becoming very intoxicated. A boy who briefly rode in the car recalled her going in and out of consciousness.

RZM dropped the girl off at her grandmother's house. At that point, she was completely unconscious and taken to hospital. There, a blood test showed her alcohol content to be above 0.34, which placed her in the category of severe alcohol poisoning.

She reportedly woke up as hospital staff were conducting a sexual assault exam. Those tests found the presence of RZM's DNA around her mouth and on the back of her leg.

RZM claimed that she had consented to perform oral sex, but the girl had no memories of any of that happening, and couldn't reven remember getting into his car. RZM was charged by Tulsa County prosecutors with forcible oral sodomy.

"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 court determined.

In other words, if you're passed out drunk and someone forces you to perform oral sex, that person isn't acting illegally, according to the law as interpreted by the court. The law lists a number of circumstances which do constitute rape. But that specific instance isn't one of them.

The appeals court ruled unanimously that, because of that loophole, the defendant couldn't be prosecuted.

Benjamin Fu, Tulsa County's assistant district attorney prosecuting the case and director of the bureau's special victims unit, told Oklahoma Watch that the court's interpretation of the law was "insane", "dangerous", and "offensive." "I told the court that this [argument] is absurd," Fu said. "And their response was essentially, 'We're not going to create a crime where one does not exist."

Fu added that the court does have the authority to determine whether the statute can encompass intoxication and unconsciousness.

Shannon McMurray, the defendant's attorney, was not available for comment. She did tell investigative journalism website Oklahoma Watch that she believed the case's prosecutors took the wrong line of argument by focusing on forcible sodomy instead of the lesser crime of unwanted touching.

"There was absolutely no evidence of force or him doing anything to make this girl give him oral sex," McMurray said. "Other than she was too intoxicated to consent."