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When rape isn't

How a court drew a line in non-existent sand

It’s enough to make you want to put a paper bag over the state.

“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 decision read

The case before the Oklahoma Criminal Court of Appeals, as you may recall, dealt with a 17-year-old boy who allegedly orally raped an intoxicated 16-year-old girl after the two had been drinking. 

Tests would later confirm that the young man’s DNA was found on the back of her leg and around her mouth. The boy claimed to investigators that the girl had consented to performing oral sex. The girl said she didn’t have any memories after leaving the park. Tulsa County prosecutors charged the young man with forcible oral sodomy.

First, the trial judge, Tulsa County District Court Judge Patrick Pickerill, dismissed the charges, stating “unconsciousness and intoxication” are not present in the law’s definition of the crime and then, equally astonishing to those with firing synapses, the court of appeals concurred. In its 5-0 decision, it agreed with Pickerill, saying forcible sodomy is only possible when one is in a position to register a complaint, and the girl, due to her intoxication, was not in that position.

It gets worse.

“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.”

That’s the boy’s attorney, Shannon McMurray, showing why Shakespeare may have been on to something when he wrote, “The first thing we do, let's kill all the lawyers.”

The fault, though, as maddening as this is, may not lie with the courts, but rather with state legislators who wrote the law. 

Michelle Anderson, the dean of the CUNY School of Law who has written extensively about rape law, called the ruling “appropriate” but the law “archaic.”

Here’s why.

Oklahoma has two laws that deal with sexual assault: 

1) One for rape by penetration, and that law specifically includes intoxication as one of the factors considered in terms of the victim not being able to consent, and 

2) One that deals with oral sodomy that includes specific requirements for the commission of “forcible sodomy” but expressly does not include intoxication as one of those requirements. 


Like it or not, that is the lens through which the Court had to decide. 

Benjamin Fu, the Tulsa County district attorney who prosecuted the case, doesn’t like it, going so far as to say he was “completely gobsmacked” by the court’s ruling.

“The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent,” Fu said. “I don’t believe that anybody, until that day, believed that the state of the law was that this kind of conduct was ambiguous, much less legal. And I don’t think the law was a loophole until the court decided it was.” 

Calling the decision “insane,” “dangerous” and “offensive,” he said to focus on why the victim was unable to consent or where literally on the body the rape took place was both obtuse and absurd. 

“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,’” Fu said. “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).”

For some out-of-state perspective, I first checked with John Shutkin, chief counsel of a law firm in Minnesota who follows cases like these, about Fu's assessment, and then with Garrett Epps, who teaches Constitutional Law at the University of Baltimore and covers the Supreme Court for The Atlantic, about the takeaway. 

Shutkin says the answer is in the very nature of the beast and why people use that Shakespeare quote so much.

Short answer—typical lawyer BS but true—is ‘it depends,’” Shutkin said. “In theory, if you have a statute out there, the judge is constrained to interpret it as written, no matter how poorly written. The idea is that it is then up to the legislature to clean up the law in the future. No lawyer can really disagree with it. That said, judges on all sides of the spectrum have contorted themselves to avoid enforcing laws that clearly were not meant to apply as their words suggest. Typically, they will rely on ‘legislative intent’ as a basis, or on adages to the effect that, if a law can be interpreted one way that makes sense and another that doesn't, a judge should choose the former.” 

Shutkin believes the stench emanates from the Capitol. 

“But the bottom line still is that a poorly drafted law may have to be enforced as written until amended or repealed.”

Epps concluded there is enough pox in this case to go around.

“Whether the decision is disgusting or the statute is disgusting, it's disgusting,” he said.

Back in Oklahoma, Tim Gilpin, of Gilpin Law Office, who has practiced law here for more than 30 years and served a stint as an Assistant State Attorney General under Robert Henry in 1989-90, agrees with both Shutkin and Epps, adding the Appeals Court should actually be applauded for how it handled this case. 

“The decision was not rendered for publication and, thus, was not ‘precedent’ for any other case.”

What that means is this decision is only good and applies only to this case—what lawyers call “law of that case.” 

So, why do that, why issue an order and not publish an opinion that’s applicable to all future cases? 

“The answer,” says Gilpin, apoplectic that the court received the lion’s share of national criticism and social media vitriol, “is the Court must answer the legal question put before it under the appeal, but does not have to strike down other cases at the same time. This order was clearly an attempt to alert the Legislature and Governor that the Law, as written, is flawed and needs revision.” 

Which brings us to those flaws.

Rep. Scott Biggs, R-Chickasha, thought the court of appeals made a “grave” error in its decision, but said, “if they need more clarification, we are happy to give it to them by fixing the statute.” To that end, he added an amendment to House Bill 2398, which would include instances in which the victim is unconscious or intoxicated into the definition of forcible oral sodomy. Further, it will include language that changes the definition of sexual consent to state, “consent cannot be given by a person who is asleep, physically incapacitated by drugs or alcohol, or is under duress, being threatened or being forced to perform a sexual act.”

You want to cut state legislators some slack on this—surely, even in Oklahoma, where many of their positions on men and women and sexuality reside in the 14th Century, they didn’t intend for there to be different criteria for anal, vaginal, and oral rape—but in a state that increasingly treats women like chattel (and we only have to see the gutting of Planned Parenthood, constraints on contraception, choice and reproductive rights, and de-certifying doctors who perform abortions, as examples), it’s not all that surprising such an abominate distinction existed.

“It’s not the Courts’ fault,” Gilpin says, “our Legislature and Governor can’t write clear and decent sexual assault laws that make sense enough to protect people. The Court has actually done us a favor by pointing out as best it can, in a non-published order, that the law as written is flawed.” 

Which will be of exactly no comfort to the raped 16-year-old girl who was told by Oklahoma she really wasn’t.

For more from Barry, read his article on the more than 30 educators in Oklahoma who applied to run for office.

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