Oklahoma’s highest criminal court ruled that it is legal to have oral sex with someone who is completely unconscious.
The unanimous decision comes after the Oklahoma Court of Criminal Appeals found a 17-year-old boy who had oral sex with an intoxicated 16-year-old girl not guilty.
The ruling, as reported by the Guardian, said that “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.”
In 2014, two high school students were smoking marijuana and drinking at a Tulsa park. Afterwards, the boy gave the girl a ride home. Intoxicated and unconscious when he arrived at her grandmother’s to drop the girl off, she was taken to the hospital. Her blood alcohol level was .341, which reflects heavy alcohol poisoning, as reported by the Oklahoma Watch.
During a sexual assault examination, the boy’s DNA was found around the girl’s mouth. In his defense, the boy claimed that the girl had consented to oral sex, but she did not remember anything once the two left the park.
Having sex with an unconscious person is included in the definition of rape, according to Oklahoma law. Oklahoma’s rape law, New York Daily News reports, says that first degree rape involves incidents where the “victim is at the time unconscious of the nature of the act.” However, the same doesn’t apply in the description of sodomy or forced oral sex.
In its defense, the court said that it cannot alter the laws that exist. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language,” the appeals court wrote.
The decision has faced criticism from prosecutors and other critics, who say that the ruling puts the blame on the victim.
According to Benjamin Fu, assistant director attorney in Tulsa County, the decision is “insane,” “dangerous,” and “offensive.” He said that the decision will discourage victims to come forward.
“Their biggest fear is that people they tell the story to won’t understand or will judge them for their behavior. If they had that concern, the Court of Criminal Appeals affirmed that, 5-0,” Fu said.
However, as reported by Mother Jones, some experts found the ruling appropriate. They highlighted that, according to the decision, forced sodomy disallows oral sex with someone not capable of offering consent because of mental illness or disability, and not as a result of intoxication or unconsciousness.