No, You Can’t Rape Drunk People In Oklahoma
May 2, 2016 (Mimesis Law) — The Internet’s latest outrage is the clickbait-fueled controversy where some misogynist dinosaur court in flyover country supposedly ruled that raping someone who is drunk to the point of unconsciousness wasn’t against the law. Fun as it might be to rail against the injustice of it all, the majority of published reports are getting this all wrong:
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appeals court, is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape.
The critics’ outrage would be better directed at the prosecutors, who completely screwed the pooch on this one, and the journalists who (once again) haven’t done their research.
Here’s what actually happened: the defendant, 17, gave a ride to the complainant, 16:
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. Another boy, who briefly rode in the car, recalled her coming in and out of consciousness.
The boy later brought the girl to her grandmother’s house. Still unconscious, the girl was taken to a hospital, where a test put her blood alcohol content above .34. She awoke as staff were conducting a sexual assault examination.
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.
He was actually initially charged with rape and forcible sodomy. The rape count was dismissed, however, because one of the elements of “rape” in Oklahoma is “vaginal or anal penetration,” which does not appear to have occurred in this case. That left the charge under the sodomy statute, which says in the relevant part:
B. The crime of forcible sodomy shall include:
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;
Read broadly, the “any unsoundness of mind” could be read to cover intoxication. Unfortunately, two rules of statutory construction make such a reading incorrect.
The first is the rule of ejusdem generis, (“of the same kind or nature”), which says that when general terms are followed by specific terms, the general terms are to be held to be of the same class of things as the specific. For example, consider a hypothetical law prohibiting mailboxes painted “red, maroon, crimson, scarlet, or other colors.” The statute wouldn’t apply to blue mailboxes, despite the “other colors” clause, since the statute refers only to shades of red. Applied to Oklahoma’s sodomy law, since “any unsoundness” follows “mental illness,” the statute is properly read to cover permanent mental disabilities such as retardation rather than temporary conditions like intoxication.
The second is the related rule of noscitur a socii, (“it is known by the company it keeps”), which says that the meaning of an ambiguous word can be determined from context. Again, given the proximity of the words “mental illness,” the “any mental unsoundness” clause in the statute can’t be stretched to include intoxication unless we squint really hard and wave our hands frantically.
The Oklahoma Court of Criminal Appeals doesn’t go into a great of detail in its two page opinion, but the money quote is:
[W]e will not, in order to in order justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.
So does this mean that the defendant stumbled on to a loophole that would allow him to commit sexual assaults with impunity, provided the victim is drunk? Not a chance. There is a statute that covers his conduct, Oklahoma’s sexual battery law:
B. No person shall commit sexual battery on any other person. “Sexual battery” shall mean the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner:
- Without the consent of that person;
Except, sexual battery carries a ten-year maximum, whereas forcible sodomy carries a 20-year maximum.
So what happened here? One of two things. One possibility is that the prosecutor isn’t very good at his job and doesn’t have a very good grasp of the various sexual assault statutes. This is possible, but one assumes that once defense counsel or the court pointed out his mistake, he simply would have amended the charges. More likely, the ten-year felony wasn’t enough for him, and he wanted a conviction under the greater offense. But, as Greenfield and Popehat have both pointed out, that’s not what the law says. This case is basically a replay of the 2012 Fourtin case in Connecticut, the same result for many of the same reasons.
The solution, though, isn’t to engage in interpretative jiggery-pokery to make applesauce out of poorly written apples. The solution is to change the law.
 Many jurisdictions draw a distinction between rape (involving penetration) and forcible sodomy (everything else). In Oklahoma, First Degree Rape carries a sentence of 5 years to life; Second Degree Rape carries a sentence of 1 to 15 years; and Forcible Sodomy carries a sentence of up to 20 years.
 The defendant claims that it was consensual, but with a .34 BAC and the complainant slipping in and out of consciousness, that’s a stretch.