The Oklahoma state court of criminal appeals recently held that a defendant could not be convicted of rape where the proof showed he had oral sex with an unconscious female. The boy, age 17, and girl, age 16, were drinking in a Tulsa park. Several witnesses testified that the girl was clearly intoxicated and had to be carried to the boy’s car when they left the area.
The boy subsequently took the still-unconscious girl home to her grandparent’s house. Shortly after her arrival, the grandparents took the girl to the hospital, where tests showed she had a BAC over .34 and further examination revealed the presence of the boy’s DNA on the back of her legs and around her mouth.
The boy later stated the girl performed consensual oral sex. The girl claimed to have no memory of the incident.
The court of appeals held there could be no conviction for forcible sodomy where the alleged victim was so intoxicated to be completely unconscious at the time of oral sex. The court reasoned that the Oklahoma statute in question listed several circumstances that constituted unlawful force, but was silent as to incapacitation of a victim due to voluntary alcohol consumption. The court declined to broaden the reading of the statute beyond the strict language of its text.
Defense counsel should be cautioned that such inquiry is state-specific and likely does not apply in their state unless their codes contain similar language. Moreover, I expect that affected state legislatures will quickly respond to close this apparent loophole in their criminal code.