Did you hear? Oklahoma said it's legal to rape someone if they're unconscious from drinking! They said it's not rape at all! It's classic victim-blaming! It's outrageous! It's rape culture! It's just what you would expect from one of those states!

Or not.

In fact, it is illegal in Oklahoma to rape someone who is unconscious. That is, to be explicit, under Oklahoma's rape statute it's illegal to vaginally or anally penetrate someone when "the victim is at the time unconscious of the nature of the act and this fact is known to the accused." It's also illegal if the victim is unconscious as a result of a drug administered by the accused.

But Oklahoma, like most states, separates unlawful anal or vaginal penetration from unlawful oral penetration. Oklahoma law — like the law of many states – still categorizes oral sexual contact as "sodomy" and refers to it as part of "the detestable and abominable crime against nature." Oklahoma is one of 14 states that still has a law criminalizing sodomy on the books.

Oklahoma makes involuntary oral contact illegal in specified circumstances:

A. Any person who forces another person to engage in the detestable and abominable crime against nature, pursuant to Section 886 of this title, upon conviction, is guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a period of not more than twenty (20) years. . . . . B. The crime of forcible sodomy shall include: 1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or 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; or 3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or 4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or 5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system.

So. In this case, one juvenile preyed upon another juvenile while she was unconscious from drinking. To be explicit again, he put his penis in her mouth. Neither was over 18. When awake she was not mentally incapacitated. He didn't use force or violence. He was charged in juvenile court. The juvenile court judge ruled that the Oklahoma statute covering involuntary oral contact didn't cover that conduct. The court of appeals agreed.

There was no normative judgment about rape. Nobody suggested that people who drink are asking for it. The normative judgment was about criminal procedure: if the law doesn't prohibit something, then you can't convict someone of it (or, in this case adjudicate a juvenile as delinquent). The appellate court cited not another rape case for this proposition, but a political corruption case that discussed statutory interpretation:

When construing criminal statutes, we follow the rule of strict construction. . . . We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language or what its terms justify. . . . . We construe any criminal statute strictly against the State and liberally in favor of the accused. . . . . We give statutory language its plain and ordinary meaning.

So. If I were the prosecution here, I would argue that (1) this conduct should come under the catch-all "forces" in Section A; (2) unconsciousness from alcohol is equivalent to mental illness or unsoundness of mind under B(2); (3) this conduct against an unconscious person necessarily involves some amount of force under B(3). Apparently Oklahoma law didn't support those arguments. Section (B) modifies and defines Section (A), and Oklahoma law already defined force and "unsoundness of mind" in ways that exclude unconsciousness from drink. The problem is simple: Oklahoma's legislature crafted its rape statute to contemplate abuse of an unconscious person, but not its statute covering oral sexual contact. I doubt that reflected a judgment by the Oklahoma legislature; it more likely reflects negligence.

Ultimately today's outrage is a repeat of the outrage over a similar decision in Connecticut in 2012. That time, prosecutors charged the defendant under the wrong statute for rape of a mentally incapacitated person. Feel free to be outraged at the carelessness of legislatures and/or prosecutors. But are you outraged that a defendant can only be convicted of the things they are charged with? Are you outraged that a defendant can only be convicted (or adjudged delinquent) for doing things that the law prohibits, as opposed to things that are prohibited by social consensus? Do you want a society where you can be convicted based on social consensus, even in the absence of a law specifically prohibiting your conduct, in a state that still classifies oral sex as the "detestable and abominable crime against nature"?

Colloquially and morally, the defendant is a rapist. Under Oklahoma law, he's not. The problem is with the statute — so fix it. The problem isn't with our failure to convict people for things that aren't already illegal.

Updated to add: In the comments, Al points out that prosecutors could have charged sexual battery:

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: 1. Without the consent of that person;

That would be a 10-year maximum sentence instead of a 20-year maximum — not that it matters for a juvenile adjudication. But it looks like this is another case of prosecutors not reading statutes carefully. Thanks, Al.

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