Criminal Justice

Oral sex with intoxicated, unconscious person isn't a crime, state high court rules

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Oklahoma’s highest criminal appeals court has held the state’s forcible sodomy law doesn’t make it a crime to have oral sex with a victim who is so intoxicated as to be unconscious.

The Oklahoma Court of Criminal Appeals ruled on March 24 in a short, unpublished decision that is being denounced by a Tulsa prosecutor, report Oklahoma Watch and the Guardian. How Appealing noted the coverage and linked to the opinion (PDF).

The court noted that the state’s rape law has language providing that a rape can occur when the victim is intoxicated or unconscious, but the forcible sodomy law does not have that provision.

Tulsa County Assistant District Attorney Benjamin Fu told the Guardian that the ruling left him “completely gobsmacked.” In an interview with Oklahoma Watch, he called the decision “insane,” “dangerous” and “offensive.” He is planning to ask state legislators to address the decision by changing the oral sodomy law.

The Court of Criminal Appeals ruled in the case of a 17-year-old boy accused of having oral sex with a 16-year-old girl after they drank and smoked marijuana at a local park, according to court transcripts cited by Oklahoma Watch. The girl had to be carried to the defendant’s car and was unconscious when the defendant took her to her grandmother’s house.

The girl’s blood alcohol level was found to be .341 after she was taken to the hospital. The defendant’s DNA was found on the girl in a sexual assault exam. The defendant told police the oral sex was consensual, while the girl told police she didn’t remember anything that happened after being in the park.

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