Forced Oral Sex Said Not Rape if Victim Passed Out

An Oklahoma court rules that if a person is unconscious and oral sex occurs, it's the victim's fault for being out of it.

In a recent case, an Oklahoma court ruled that oral sex with an unconscious victim would not be criminalized by the state. Critics say this ruling supports victim-blaming and reflects an outdated idea of how rape is defined, reports The Guardian.

Legal experts and advocates for victims of sexual assault are saying this is actually a sign of an even larger issue. One of the biggest problems in sexual assault cases in the U.S. is that many state laws do not account for the evolving ideas about rape and consent.

The case in Tulsa alleged that the defendant, a 17 year-old boy, volunteered to give a girl, 16, a ride home. It was clear she was severely intoxicated after the two had been drinking together at a park with friends. Witnesses say she had to be carried to the car, and another boy who briefly rode in the car with them said he recalls the girl coming in and out of consciousness.

The boy brought her to her grandmother's house and she was later taken to the hospital where it was discovered that her blood alcohol level was above .34. A sexual assault exam was performed on her and the boy's DNA was found on the back of her leg and around her mouth. The boy claims the girl consented to performing oral sex on him, but the girl says she has no memory of anything after the park.

RELATED: Why is There a Statue of Limitations on Rape?

The boy was charged with forcible oral sodomy by Tulsa county prosecutors, but the judge dismissed the case. The decision read, "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 judge said the reasoning behind his decision is that the law does not specifically list a victim's incapacitation from drinking alcohol as a circumstance that could constitute force.

Tulsa County District Attorney Benjamin Fu told The Guardian: "The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent."

Focusing on the reason why the victim was unable to consent puts the victim at fault, he explained.

However, legal experts are saying the problem isn't the judge's ruling, it's Oklahoma's archaic rape laws. The dean of the CUNY School of Law, Michelle Anderson, told The Guardian: "It [Oklahoma's sexual assault law] creates a huge loophole for sexual abuse that makes no sense."

Oklahoma has laws that protect victims who are too intoxicated to give consent in cases of vaginal and anal sexual assault, but because this case involved oral sexual assault, there was a loophole.

Fu says he will work to change this law and help Oklahoma adapt their laws to the modern understanding of what rape really means, as many other states have done in recent years.