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In a bizarre legal loophole, Oklahoma's criminal statutes don't prohibit forcible oral sodomy if the victim is too intoxicated to consent, even to the point of complete unconsciousness. So said a unanimous state appeals court, confirming a lower court's dismissal of criminal charges against one teen who had oral sex with another who said she has no memory of the incident and whose blood alcohol content afterwards was .34.
In a curt, two-page opinion, four judges on Oklahoma's Court of Criminal Appeals agreed that they "will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language." So what is the statute, and what, specifically, is its language?
As written (and nearly impossible to find on the Interwebs), Oklahoma's forcible sodomy statute prohibits five specific acts:
And none of the five strictly cover what happened in this case, where a 17-year-old boy gave a 16-year-old girl a ride home after both had been drinking. The girl says she remembers nothing after getting into the car and another passenger recalled her going in and out of consciousness. The girl was dropped at her grandmother's and eventually taken to the hospital, were a sexual assault examination found the boy's semen around her mouth. The boy claimed she consented to oral sex.
The court may have stretched the definition of "unsoundness of mind" to include drunken unconsciousness, but that's probably not what the legislature meant when it wrote the law. Instead, the court noted "[t]he Legislature's inclusion of an intoxication circumstance for the crime of Rape ... is not found in the five very specific requirements for commission of the crime of Forcible Sodomy," and therefore, "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."
While the appeals court noted the absence of legislative language to cover incidents like these, Oklahoma lawmakers blasted what they called a "court-created loophole" and vowed to fix the statute.