# Oklahoma Court Rules that Forced Oral Sex Is Not Rape if Victim is Unconscious from Drinking **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [April 28, 2016, 9:39am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322 "2016-04-28T09:39:17Z")\ **Posts on this page:** 12\ **Page:** 1
**Author:** ![PastTense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pasttense/32/14550_2.png) [@PastTense](https://boards.straightdope.com/u/PastTense)\ **Post date:** [April 28, 2016, 9:39am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/1 "2016-04-28T09:39:17Z")
> [@](#): > > Ruling is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape. An Oklahoma court has stunned local prosecutors with a declaration that state law doesn’t criminalize oral sex with a victim who is completely unconscious. > > The ruling, a unanimous decision by the state’s criminal appeals court, is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape. But legal experts and victims’ advocates said they viewed the ruling as a sign of something larger: the troubling gaps that still exist between the nation’s patchwork of laws and evolving ideas about rape and consent. > > The case involved allegations that a 17-year-old boy assaulted a girl, 16, after volunteering to give her a ride home. The two had been drinking in a Tulsa park with a group of friends when it became clear that the girl was badly intoxicated. Witnesses recalled that she had to be carried into the defendant’s car. > **[Oklahoma court rules that forced oral sex is not rape if victim is...](https://www.rawstory.com/2016/04/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/)** > > Ruling is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rapeAn Oklahoma court has stunned local prosecutors with a declaration that state law doesn’t criminalize oral sex... The court’s reasoning was that the statute listed several circumstances that constitute force, and yet was silent on incapacitation due to the victim drinking alcohol. I disagree. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [April 28, 2016, 10:39am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/2 "2016-04-28T10:39:02Z")
> [@PastTense](#): > > I disagree. Please make room on your limb, for I share your bold opinion and am joining you. ---
**Author:** ![FairyChatMom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fairychatmom/32/22080_2.png) [@FairyChatMom](https://boards.straightdope.com/u/FairyChatMom)\ **Post date:** [April 28, 2016, 10:57am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/3 "2016-04-28T10:57:27Z")
Gee, was the boy a high school football player or something? Not that I’m cynical or anything… ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 28, 2016, 10:57am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/4 "2016-04-28T10:57:31Z")
The summery of the decision. (State v RZM) Firstly, the OP is mistaken. The specific crime that the individual was charged with was not rape, it was “forcible sodomy”, which seems to be a distinct crime from rape in the jurisdiction. Sodomy includes [QUOTE=21OKl S 888B] Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or 2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or 3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or 4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or 5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system. ] [/QUOTE] In other words sodomy with someone with unsoundness of mind is a crime, but intoxication seems not to be the case, unlike rape where [QUOTE=21 Okl S 1111] A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator under any of the following circumstances:… 4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit; [/QUOTE] What has been expressly removed as a defense by the legislature for one crime (rape) and has not been done for another crime (forcible sodomy) cannot be read into the later by the Court as its clear that legislative intent was for this not to apply. I think the result is a lousy one. The judgement however is correct and just, if an action, no matter how abhorrent does not come within the ambit of criminal statute then its not a crime, The remedy is obvious… change the law, which is the purview of the legislature. (Incidentally and **Bricker** can help me here, does the US Constitution not require that a no one can be convicted of a something unless it has expressly been made a crime?) ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [April 28, 2016, 11:09am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/5 "2016-04-28T11:09:28Z")
**AK84** is right, and so is the court. The legislature screwed this up and they have to fix it. > [@AK84](#): > > (Incidentally and **Bricker** can help me here, does the US Constitution not require that a no one can be convicted of a something unless it has expressly been made a crime?) You can certainly be charged with and convicted of common-law crimes in some state courts (others have expressly abolished them.) All states have adopted criminal codes and generally prefer to use those, though. The Supreme Court has [held](https://en.wikipedia.org/wiki/United_States_v._Hudson_and_Goodwin) that federal courts can only try statutory crimes. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [April 28, 2016, 11:16am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/6 "2016-04-28T11:16:07Z")
You all and your facts. I’m leaving and taking my outrage with me. ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 28, 2016, 11:23am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/7 "2016-04-28T11:23:58Z")
I’m not a lawyer, but my reading of the text leads me to not agree that the quoted section of the rape statute covers this situation. The woman was not drugged by the rapist, nor did the rapist have her drugged by someone else. She become intoxicated under her own volition. The situation here is merely the fact that she was intoxicated to the point that she is of unsound mind for legal consent due to intoxication. And unsoundness of mind is covered. I also do not agree that the ruling is fair or just. It may be legally sound (though see above), but there are unfair and unjust laws, and this is one of them. But I realize that this is probably a semantic argument, possibly a language difference. Finally AK84’s link is broken. It seems to have additional info added by some Chrome extension (perhaps something that gets you around a firewall?). [Try this one instead.](http://www.ocdw.com/main/wp-content/uploads/2016/03/State-v.-RZM.pdf) ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [April 28, 2016, 11:37am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/8 "2016-04-28T11:37:47Z")
I also do not understand why they wouldn’t also charge him with the lesser offense of rape. It makes about as much sense as Zimmerman being only tried on Murder 2. Why not always include the lesser crime? It clearly is unjust if someone gets off because the prosecutor overcharged. That’s getting off on a technicality. Also, I figured out the problem with AK84’s link. He uses the PDF.js extension instead of Chrome’s native PDF support. As an extension, it adds some junk at the front of the URL. The only way I can see to remedy this is to only copy the part starting with “http” or possibly “ftp”. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [April 28, 2016, 11:40am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/9 "2016-04-28T11:40:02Z")
> [@BigT](#): > > I also do not agree that the ruling is fair or just. It may be legally sound (though see above), but there are unfair and unjust laws, and this is one of them. But I realize that this is probably a semantic argument, possibly a language difference. Keep in mind that it’s necessary that _just_ does not only mean “this guy did something shitty, he should be punished.” It must also mean that people can not be punished for arbitrary reasons, and that the things that people will be punished for should be ideally written down (like in a criminal code) and that this can be changed as necessary by a competent and accountable authority (like a legislature) and there should be an impartial mechanism to determine if a person’s behavior meets those definitions (like a court of law.) While this guy is undeniably shitty, I am generally glad that we have a system in which we generally try (not always successfully) to apply the above principles, which are a reasonable way to organize a society. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 28, 2016, 11:41am UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/10 "2016-04-28T11:41:18Z")
> [@BigT](#): > > I’m not a lawyer, but my reading of the text leads me to not agree that the quoted section of the rape statute covers this situation. The woman was not drugged by the rapist, nor did the rapist have her drugged by someone else. She become intoxicated under her own volition. The situation here is merely the fact that she was intoxicated to the point that she is of unsound mind for legal consent due to intoxication. And unsoundness of mind is covered. Yes very obviously not a lawyer, because the quoted part of the rape statute expressly defines “rape” as being limited to vaginal or anal penetration, so the actions in this case do not come under the ambit of “rape”. Although you don’t have to be a lawyer to read that.:D. Secondly, “unsoundness of mind” has a very specific definition at common law (mental illness or retardation) and it seems to be the same in Oklahoma Oklahoma (see _Stadler v State 919 P.2d 439, where it was held that "…Clearly, the term “unsoundness of mind” is limited to those situations in which the victim is either a mentally ill person or a mentally deficient person…"_. In other words, drunkeness does not cause you to become “unsound” of mind. > [@](#): > > I also do not agree that the ruling is fair or just. It may be legally sound (though see above), but there are unfair and unjust laws, and this is one of them. But I realize that this is probably a semantic argument, possibly a language difference. A ruling can be fair and just and not one which makes a reasonable person happy. The principle here is not whether the Appellant was/is a piece of garbage, the issue is that whether it is appropriate for a Court to read in situations and acts/omissions into a criminal statute, expanding its scope. That is not a good position. It may lead to a desirable result here, but permitting such a precedent can and will easily lead to bad outcomes later. > [@](#): > > Finally AK84’s link is broken. It seems to have additional info added by some Chrome extension (perhaps something that gets you around a firewall?). [Try this one instead.](http://www.ocdw.com/main/wp-content/uploads/2016/03/State-v.-RZM.pdf) I used Chrome, thanks. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [April 28, 2016, 12:38pm UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/11 "2016-04-28T12:38:18Z")
The outrage comes from the clickbaity title of the story. I expect nothing less than that from Rawstory. Unfortunately the OP used the same title. An appeals court is not supposed to make judgements as to the guilt of the defendant or the morality of actions. They make decisions based on the law. In this case that is what they did. There is no way that the prosecution can prove physical force was used. They attempted to say that she could not consent due to being incapacitated by alcohol. At .34% BAC that is undoubtedly true. However the law does not state that one of the elements of the crime is for the victim to be incapacitated by drugs or alcohol. It’s simply not part of the law. It’s not up to the appeals court to fix the law. The state legislature has to. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 28, 2016, 4:02pm UTC](https://boards.straightdope.com/t/oklahoma-court-rules-that-forced-oral-sex-is-not-rape-if-victim-is-unconscious-from-drinking/753322/12 "2016-04-28T16:02:26Z")
> [@BigT](#): > > I also do not understand why they wouldn’t also charge him with the lesser offense of rape. It makes about as much sense as Zimmerman being only tried on Murder 2. Why not always include the lesser crime? It clearly is unjust if someone gets off because the prosecutor overcharged. That’s getting off on a technicality. They did not charge him with rape because the alleged action was not w_ithin the definition of the law of rape the jurisdiction had._ i.e forcible vaginal or anal intercourse. Rape not a _lesser charge_\*, its a different offence, or a _technicality_. It’s a decision on merits and no one disputed that it was not rape including the State.