Tulsa prosecutors say they are angry over a ruling by Oklahoma’s highest criminal court that the state’s forcible sodomy law doesn’t apply when the victim is intoxicated or unconscious.

The decision by the Oklahoma Court of Criminal Appeals contrasts with a national push to step up enforcement of sexual assault laws and toughen rules of sexual consent.

On March 24, the Court of Criminal Appeals found that because of the way the state’s sodomy law is written, “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.”

The ruling denied an appeal by the Tulsa County District Attorney’s Office in a case arising from an incident between two high school students in 2014. The appeals court wrote that the original ruling in November by a Tulsa County judge dismissing the case was not in error.

Although Oklahoma’s rape law says a rape can occur when the victim is intoxicated or unconscious, the forcible sodomy law does not contain that language. The appeals court unanimously ruled that because the law lacks that provision, the defendant could not be prosecuted. The boy, who was 17 at the time, was charged as a youthful offender, meaning, if convicted, he could have been moved to a prison at age 19 if he didn’t meet certain conditions in the juvenile system.

“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an offense, enlarge a statute beyond the fair meaning of its language,” the appeals court wrote in what is called an “unpublished opinion,” meaning it cannot be cited as a precedent.

Benjamin Fu, Tulsa County assistant district attorney and director of the office’s special victims unit, called the court’s interpretation “insane,” “dangerous” and “offensive.” He said the court had the authority and precedent to determine that the Legislature intended to include intoxication and unconsciousness in the sodomy law. As a comparison, Fu referred to the fact that an intruder who enters the unlocked door of a home can be still charged with breaking and entering.

“I told the court that this (argument) is absurd,” said Fu, the lead prosecutor in the case. “And their response was essentially, ‘We’re not going to create a crime where one does not exist.’”

Fu said he and law enforcement officials plan to push for legislation to address the discrepancy in rape and sodomy laws.

The case in question involves two high school students who were drinking and smoking marijuana with several friends at a Tulsa park into the early morning hours of June 1, 2014.

The female student, who was 16 at the time, had drunk a large quantity of vodka; blood tests would later show her blood-alcohol level at .341, more than four times the legal limit to drive and indicative of severe alcohol poisoning, court records state.

(Oklahoma Watch is withholding the names of the defendant and the victim because of their ages and because it generally does not identify victims of sexual assault.)

Court transcripts showed several other minors who were present testified that the girl was stumbling and falling. The group agreed to allow the defendant in the case, who attended the same school, to take her somewhere to stay in his car.

Records state that two boys had to pick the girl up and carry her to the car. Another boy who rode with the two but was later dropped off testified that the girl was drifting in and out of consciousness and could not walk.

Later, the defendant brought the girl, who still was not conscious, to her grandmother’s house, and the family took her to a Tulsa hospital. A sexual assault examination was conducted, and the boy’s DNA was found on her, court records show.

In an interview with police, the defendant said the victim engaged in consensual oral sex with him and it was her idea. The girl told officers she could not remember anything after being at the park.

Prosecutors initially charged the boy with first-degree rape and forcible oral sodomy, but because there was no evidence showing he had raped the girl, that charge was dismissed.

Later, Tulsa County District Court Judge Patrick Pickerill dismissed the forcible oral sodomy charge, stating unconsciousness and intoxication are not present in the law’s definition of the crime.

Fu said he does not blame the Legislature for not addressing the issue earlier; rather he blames the court’s interpretation of the statute.

“My argument was that if you rule today that because she was intoxicated it can’t be force, then … you’ll have to engage in what I can only refer to as the ‘orifice test,’” Fu said. “Whereby the contact by the defendant and the state of mind of the victim are the exact same. It just depends on (the location of the sexual act).”

Shannon McMurray, attorney for the defendant, said prosecutors handled the case poorly and a charge of sexual battery would have been more appropriate. However, because the girl did not remember, it would still be difficult to prove she did not consent, McMurray said.

“They (prosecutors) were trying to substitute one element for the other, meaning intoxication in the rape statute, when there was absolutely no evidence of force or him doing anything to make this girl give him oral sex other than she was too intoxicated to consent,” McMurray said.

“The court agreed what the state was attempting to do was rewrite statute and add an element,” McMurray said. “You can’t substitute force with intoxication under the law.”

Because the case was unpublished, it does not set a hard legal precedent, Fu said. But the interpretation could allow others convicted under similar circumstances to be freed if they appeal.

The argument is also already being used in similar cases and would make it much harder for some sexual assault victims to come forward and report the crime, he said.

“All this does is add to the fire,” Fu said. “Their (sexual assault victims’) 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.”

Update, May 5

Rep. Scott Biggs, R-Chickasha, has introduced language into an existing bill that would amend the state’s forcible oral sodomy law to include instances in which the victim is unconscious or intoxicated.

House Bill 2398 also changes the definition of sexual 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.

Update, April 28

State Rep. Scott Biggs, R-Chickasha, says he plans to amend a bill to include unconscious victims in Oklahoma’s forcible sodomy law. In a news release, Biggs said, ““I am horrified by the idea that we would allow these depraved rapists to face a lower charge simply because the victim is unconscious. 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.”