Reformers and state prosecutors are all calling for the Oklahoma legislature to revisit the state’s sexual assault laws after an appeals court upheld the dismissal of charges against a 17-year-old boy who was accused of sexually assaulting an unconscious 16-year-old girl.

According to court documents, the boy assaulted the girl after volunteering to drive her home from a Tulsa park where they had both been drinking. According to witnesses, the girl was heavily intoxicated, unable to walk and coming in and out of consciousness. He eventually dropped her off at her grandmother’s house to sleep. When the girl woke up, she was in the hospital where the staff was conducting a sexual assault examination.

The boy told the police the oral sex was consensual; the girl said she had no memory of the assault (her blood alcohol level was four times the legal limit). Traces of his DNA were found on her leg and around her mouth.

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The boy was charged with forcible oral sodomy and first-degree rape, but both were dismissed at trial. The first-degree rape charge, which does include provisions for intoxication, was dismissed for lack of evidence. The forcible oral sodomy charge was dismissed because the statute does not include any references to intoxication or unconsciousness in the statute.

In late March, the state’s Court of Criminal Appeals upheld the previous court’s decision, ruling:

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. Finding no error, the State’s appeal to this Court is denied. The Legislature’s inclusion of an intoxication circumstance for the crime of Rape...is not found in the five very specific requirements for the commission of the crime of forcible sodomy [...]. We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.

Essentially, the Court of Criminal Appeals said that while Oklahoma’s forcible sodomy laws offered five definite examples of what constitutes force, it did not include incapacitation or unconsciousness. The state’s forcible sodomy law was written loosely and effectively has a big, ugly loophole.

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Benjamin Fu, the Tulsa district attorney heading the case, was surprised by the court’s interpretation. “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.”

But other legal experts said that the court’s interpretation of the law was correct, but the law itself is “archaic.” Activists pointed out that Oklahoma’s forcible sodomy law was typical of the patchwork of rape and sexual assault laws across the nation; laws that might be well-intended but leave sizable cracks that are too easy to fall through. The state’s rape law, for example, is clear that intoxication and unconsciousness hinder consent, but the law only covers vaginal and anal penetration.

“It’s not surprising, although unfortunate, that this is how it came down,” Rebecca O’Connor, vice president for public policy of RAINN told the New York Times. “It’s also not unique to Oklahoma. This sort of gray area of law can lead to unfortunate consequences.”

Oklahoma state representative Scott Biggs said on Thursday, April 28, that he would introduce legislation to amend the current statute.

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Image via Getty.