At the end of March, an Oklahoma court ruled that engaging in oral sex with an unconscious person was not rape. The ruling was made in response to an allegation against a 17-year old boy in Tulsa who offered to drive home (and then assaulted) a 16-year old girl after the two had been drinking with friends in a park. After being brought to the hospital, DNA tests revealed the boy's DNA around the girl's mouth and the back of her legs. While the boy stated that the girl consented to perform oral sex on him, the girl claimed she had no memory of any events after leaving the park.
This case questions the definition of consent and at what point a person is unable to give it. According to the Rape, Abuse & Incest National Network, there are many factors that contribute to consent. These include age, mental and legal decision-making capacities and mutual agreement. While most people have a general idea of what sober consent is, drugs and alcohol can complicate this understanding.
Consent is based on the mutual agreement from all participants engaging in sexual activity. If one or more participants is unable to provide this consent, the activity should not occur. The initiator (and/or most sober of the participants) is responsible for determining whether the other party is able to give clear consent. Based on these criteria alone, the 17-year old male should have been charged with sexual assault.
Despite this overwhelming evidence, the Oklahoma Court of Criminal Appeals still ruled in favor of the lower court hearing, claiming it "was right to dismiss a forcible oral sodomy charge against the teenaged suspect because state law doesn't mention intoxication or unconsciousness among the five criteria describing the crime."
Representative Scott Biggs, a former prosecutor, has pledged to change the law. When asked if he supported the ruling, he stated, "I think the judges made a grave error, but if they need more clarification, we are happy to give it to them by fixing the statute. Unfortunately, legal minds often get stuck on questions of semantics, when it is clear to most of us what the intent of the law is."
On May 5th, Biggs amended Oklahoma's sodomy law to include the conditions of victim intoxication or unconsciousness. In addition, the House Bill 2389 changed the definition of consent to state that "consent cannot be given by a person who is asleep, physically incapacitated by drugs or alcohol, or is under duress, being threatened or being forced to perform a sexual act." Many applaud Biggs' work, and believe it is time Oklahoma recognize the important distinctions between rape and consent.
