Regarding That Oklahoma Rape Decision You're Outraged About

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.

Last 5 posts by Ken White

Comments

  1. Mike B says

    But Ken, you missed the entire point here. What happened is rape, and we have decided (I'm told by the internet that we decided, even though I don't recall participating) that rape is not just a crime, but a special crime deserving special attention, and a special exemption to the normal rule of law.

    There is no such thing as a defendant, just a rapist, and that rapist doesn't have any of those stupid things called rights. I'd think as a lawyer you'd realize that when we (again I can't figure out exactly who constitutes "we" but you'll just have to trust me on this one) have decided that something is wrong, that's all that matters. The law isn't some meticulously documented set of rules that we need be aware of… It is whatever we feel it should be and we need not waste time or energy on things like due process or the fact that you didn't actually break a law.

  2. samwise says

    I feel like, when it comes to legal matters, a lot of people confuse "can" and "should". Another case where this came up lately is #freekesha. Just because a nice, empathetic person perhaps would let kesha out of her contract, that doesn't mean anybody can.

  3. GuestPoster says

    Hmm, thank you for the explanation of why this is outrageous, but not in the way many of us certainly imagined it was. I do find it odd that 'unconscious' does not count as an unsoundness of mind rendering a person incapable of giving legal consent, but I do agree that that doesn't SEEM to be what section 2 was aiming at in the first place.

    So I suppose we're now down to being outraged that the legislature hasn't fixed this yet. It's been a few hours. It's clearly wrong. What are they waiting for? The third coming?

  4. Al Petrofsky says

    Ken, you make it sound like putting one's penis in the mouth of an unconscious person is currently legal in Oklahoma, which would be a problem in urgent need of legislative attention. However, as best I can tell, that act is already prohibited by 21 O.S. § 1123(B) ("Sexual Battery"), and punishable by "not more than ten (10) years" imprisonment. Wasn't the question here just whether the prosecutor could charge it under 21 O.S. § 888, which provides for up to 20 years imprisonment?

  5. Jeremy says

    When I saw the tweet last night I was waiting for the Popehat treatment.

    I took a look at the judge's summary opinion and the relevant statute last night as well, but I missed where "unsoundness of mind" was defined to exclude being unconscious from alcohol poisoning; do you have a link? If not for that definition, the forcible sodomy charge would've been a slam dunk under (b)(2), right? As a non-lawyer, I couldn't understand why that charge got dismissed.

    Finally, what's the deal with "the detestable and abominable crime against nature"? I get that old people really hated any form of sexual contact that wasn't missionary with the lights on for the sole purpose of procreation, but since it was largely meant to capture buttsex and bestiality, and fellatio was specifically not prohibited, why not explicitly prohibit those two things? That would make more sense than some incredibly vague term that no non-lawyer would understand.

  6. Mike B says

    @Jeremy

    I think what you get when overly puritanical societies start legislating away "icky" things is you get an initial ban on all things deemed gross/icky/an affront to god/whatever, and then you get these kinds of increments when someone even more stodgy and puritanical comes into power. I'm not exactly a law historian, much less a lawyer in the first place, but It seems to me that's a common pattern. X grosses everyone out, X is then outlawed, then someone else comes along on the platform that "law X doesn't go far enough, we need to outlaw Y too." and in the process of doing so they get sloppy and inconsistent, as is so often the case when people pile on to just about any crusade. The structure of the original outrage gets lost in the world's shittiest game of telephone.

  7. mcinsand says

    @Jeremy and @Mike_B

    The way these laws get onto the books reminds me of our current situation with respect to terrorism. 'What? You won't support our ridiculously over-reaching legislation? You must be a ." Decades ago, the term would have been pervert, while, today it would be terrorist.

    And, of course, legislators keep trying to one up over each other by going more extreme and, in the process, tarring any opposition as being a n'er do well.

  8. Mike B says

    @mcinsand

    I feel like it's almost exactly that. It used to be "perverts" then it became "communists" then "terrorists" and now it's oddly enough back to "perverts" with the bathroom legislation, though I suppose in a so far ineffective effort to dog-whistle it for a modern audience they've framed it up as "rapists" instead of "perverts," but the argument is fundamentally the same. Instead of "if we let them put it in the butt the devil will ruin the harvest" it's "if we let the perverts pick their bathrooms, some of them will rape your daughter."

    People seem to think this trend of one-upsmanship is something relatively modern, but I genuinely think it goes back as far as you're willing to look. The founding fathers played this same game with federalism and manifest destiny, the colonists before them did it with sodomy and blasphemy laws, and renaissance and medieval rulers tried to prove they weren't their successor by cracking down on the outsider flavor of the month. What people seem to think is a new game is just an evolution of the same pearl clutching bullshit that's been going on for centuries.

  9. Dave Buckles says

    Thank you, Ken. I've been explaining this to friends for several days now.

    Dave Buckles, OBA 32364

  10. DRJlaw says

    @Jeremy

    The rape statute includes the circumstances:

    2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

    4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;

    The sodomy statute includes the circumstance:

    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;

    but no mention of intoxication.

    If you creatively define "unsoundness of mind" to include intoxication, then the 4th circumstance in the rape statute becomes entirely redundant. Also, you eliminate the qualification the legislature required for that circumstance — "administered by or with the privity of the accused as a means of forcing the victim to submit."

    Courts generally try to avoid interpreting statues in ways that moot particular limitations and override apparent distinctions made by a legislature. They also try to interpret language consistently across statutes unless terms are expressly defined to have particular meanings for particular purposes. That's more or less the basis what is being said in the final two sentences of the appellate opinion before the decision heading.

  11. Lawrence D'anna says

    OK so if what he really committed was "sexual battery" instead of "sodomy", why not transmute his conviction to that and re-scentence? Was the function of the trial really to parse those distinctions? Did the jury consider the statuary language? Or did the jury consider the facts and evidence to decide whether the state had proven he committed a certain act?

    I'm really not seeing what rule-of-law principle is served by letting the guy off just because the prosecutor changed him on the wrong statute, if the facts the jury convicted him of are covered by some other statute.

  12. orgoman says

    Long time listener, first time caller.

    Forgive me for being ignorant of the legal nuances here, but but what prevents the prosecutors from refiling a charge of sexual battery? I assume there is some sort of double jeopardy involved, but where does the law draw the distinction between charging for the same crime and charging for a different crime that occurs at the same time? Or some such thing.

    Asking for a friend, of course.

  13. ShelbyC says

    "why not transmute his conviction to that and re-sentence? "

    Because there is no conviction?

    And even if there was, the state has to prove every element of the offense charged, they can't ask him to defend against one accusation, and then turn around and say he is guilty of something else.

  14. Mike says

    I'm pretty sure I disagree with the court's rationale here, if not the result. It suggests that the legislature's inclusion of an intoxication circumstance in the rape statute makes relevant the lack of one in the sodomy statute. But the intoxication element in the rape statute applies only where the victim is intoxicated by a drug "administered by or with the privity of the accused as a means of forcing the victim to submit." It would *not* cover the situation where the accused sodomizes a victim who has rendered him or herself unconscious through no action of the accused. (Presumably, this is prohibited under the rape statute, but not by the plain language of this provision.) And it would seem to cover drugs that merely render the victim compliant, in addition to those that render the victim totally unconscious.

    The more defensible rationale, I think, would be to point out that the sodomy statute does not cover the situation in which "the victim is at the time unconscious of the nature of the act and this fact is known to the accused," which is covered by the rape statute.

  15. Al Petrofsky says

    Lawrence D'anna, there was no conviction, no sentence, no trial, and no jury. Not a single fact of the case has been proven. As the opinion says, the defendant's "pre-trial motion to dismiss was granted".

    So, I think your question essentially is this: when there's some evidence that you may have committed a crime with a maximum penalty of X, why shouldn't a prosecutor be allowed to try to get away with charging you with a crime with a maximum penalty of 3X (despite the evidence not supporting that charge, even if all the evidence holds up at trial), and if that doesn't work, try again to charge you with a 2X crime, and then if that didn't work, finally charge you with the crime that he actually has some evidence to support?

  16. Al Petrofsky says

    My last comment was an attempt to show Lawrence that it wouldn't defy all common sense to refuse to allow the prosecutor a do-over.

    As a legal question, though, I don't know whether or not the prosecutor is actually disallowed from refiling. If it never got to trial, then double-jeopardy didn't attach, right? (In case it's not obvious, IANAL.)

    If the prosecutor can simply refile with the correct charge, then is all this press just the result of him being a massive drama queen?

    In other words, I second Orgoman's friend's request for a double-jeopardy-splainer.

  17. Lawrence D'anna says

    Al: ah ok, I misunderstood.

    So does this mean the prosecutor now can't charge him with the crime he's actually accused of because he charged him with the wrong crime then?

    If so, again, I don't see how that's protecting justice or lawfulness. Why not re-charge him under the accurate charge?

    I guess what I'm really asking is why should double jeopardy apply at the level of picking what statute to charge him with instead of at the level of the act he's accused of committing?

  18. DRJlaw says

    Was the function of the trial really to parse those distinctions?

    Yes.

    Did the jury consider the statuary language?

    Juvenile court trial. There is no jury, simply a juvenile court judge. Who did consider the statutory language.

    Or did the jury consider the facts and evidence to decide whether the state had proven he committed a certain act?

    The judge determined that the state could not prove that the defendant committed a certain act – the charged act of sodomy.

    I'm really not seeing what rule-of-law principle is served by letting the guy off just because the prosecutor changed him on the wrong statute, if the facts the jury convicted him of are covered by some other statute.

    I'm thinking the right to know the charges against you and, consequently, mount an appropriate defense challenging whether a charged act included the elements required for criminal liability (6th Amendment to the US Constitution). If the prosecution does not specify a charge, how is the defense supposed to analyze and dispute the actions and mental states that must be proved to obtain a conviction? If the prosecution were permitted to change a charge after the fact, would the defense be permitted to answer the new charge? Be permitted time to research relevant evidence to be used to refute the new charge?

  19. David H says

    I guess what I'm really asking is why should double jeopardy apply at the level of picking what statute to charge him with instead of at the level of the act he's accused of committing?

    To avoid fishing expeditions, I imagine.

    But I'm not a lawyer. Someone who's a lawyer should confirm.

  20. freedomfan says

    @Lawrence D'anna, I think Al Petrofsky brings up a good point, a post or two above your last one. I don't know whether the prosecution is legally prohibited from re-filing under a more appropriate charge, after he has already filed under one that is dismissed. But, I certainly think it would be a problem if there were generally no restriction on that sort of refiling.

    We certainly don't want a situation in which a prosecutor can charge with the most serious crime (say, in terms of likely sentence if convicted) and then, when that is dismissed, refile on the next most serious, and so on until one of them sticks. Imagine a circumstance in which, during a roadside arrest, the accused pushes an officer. Should the state get to charge the defendant with attempted murder, since the officer might have been killed by a passing car and, when the court dismisses that charge, then pick some other heinous crime as the charge, and so on, until finally he settles on assaulting an officer or resisting arrest or whatever? Each filing would be potentially ruinous for the defendant, keeping him in legal jeopardy (and possibly in custody) for days or weeks as the process works its way through the system.

    In other words, it may be a good thing if part of the protection that a (potential) defendant has is that the prosecution has to do its job correctly and not just blunder about until it stumbles into a convict-able offense .

  21. DRJlaw says

    BTW,

    I think we're all losing sight of the fact that this was an appellate court ruling concerning a juvenile court judge's decision in a pre-trial motion to dismiss a specific charge. Especially me, since I deleted a big block of text extolling the virtues of the double jeopardy rule in the last post.

    I don't see anything in the appellate decision that suggests that the defendant could not be charged differently and is being "let off." My took-one-crim-law-class understanding is that a jury must have been selected or, for a bench trial, a witness must have been seated in order for jeopardy to attach. There will undoubtedly be a mass of law, criminal procedure, and local precedent that affects whether the defendant could be recharged more appropriately.

    @Mike

    But the intoxication element in the rape statute applies only where the victim is intoxicated by a drug "administered by or with the privity of the accused as a means of forcing the victim to submit." It would *not* cover the situation where the accused sodomizes a victim who has rendered him or herself unconscious through no action of the accused.

    But if, as you say, the statute covers an act against victim who has rendered him or herself unconscious through no action of the accused, then why have a separate circumstance that additionally requires privity and intent to force the victim to submit? The only potential distinction at all is conscious versus unconscious intoxication.

    The ultimate problem is that "mental illness or any unsoundness of mind" does not appear to extend to unconscious or even blackout drunk under that law. Intoxication and unconsciousness are separately covered under A.4. and A.5. of the rape statute. They are not mentioned in the sodomy statute. If either condition falls within "mental illness or any unsoundness of mind" then the corresponding A.4 and A.5 are mere surplusage, because no additional condition is required under A.2. and there is no sentence enhancement for falling under A.4. or A.5.

    From a statutory construction perspective they must mean different things. The circumstances can overlap but cannot be entirely subsumed within other more general circumstances.

  22. Lawrence D'Anna says

    DRJlaw: Thanks for the informative reply. But I don't think the principle's as black and white as you're making it sound.

    Suppose someone steals something and is convicted of grand larceny. Suppose the value the thing stolen is just over the limit for grand larceny* . Then suppose he appeals, on the basis that the value of the stolen goods was added up wrong, and the actual value was just under the limit. Should he just go free now because we wouldn't want to give an abusive prosecutor a second chance to convict him? Or should he be punished for petty larceny?

    I understand the jury's finding is binary, not a narrative, but that doesn't make look any less silly to me. The prosecutor argued he stole some stuff, and the jury convicted him of doing that. I don't think the purpose the jury served in that proceeding was to check the prosecutor's math, and I don't think it's sliding us down the slippery slope to prosecutorial tyranny to just correct the error.

    Suppose instead of adding up wrong, the law specifies some procedure for determining the value of stolen goods, and the procedure was misapplied for some complicated lawyerly reason. Still seems silly to call that double jeopardy, but maybe a little less so.

    This "sodomy" vs. "sexual battery" issue seems a little further along the scale.

    Where do you draw the line? Hell I don't know that's what lawyers are for. But I don't think the question is trivial or the answer obvious.

    [*] Please forgive my ignorance if i'm getting the terminology wrong here. I assume there are different versions the crime of "stealing things" that you can be charged with based how much what you stole is worth.

  23. Jerry Tarone says

    "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"?"

    No, but I wasn't presented with these facts, obviously. Thank you.
    Don't get your panties in a bunch because some people were not presented with the facts and they got upset. You presented them with the facts, and I now I know.
    You should have a video at the bottom: "The more you know".

  24. Quiet Lurcker says

    @Ken White –

    This is probably a very cynical position, but I'm going to ask this question anyway.

    Is it even remotely possible the prosecutor was playing his "tough on crime" card for the media, only to be caught out by a savvy defense attorney?

    IOW, is this a headline-grabbing prosecutor who over-reached, only to be hoist by his own petard?

  25. Mike says

    @DRJlaw

    But if, as you say, the statute covers an act against victim who has rendered him or herself unconscious through no action of the accused, then why have a separate circumstance that additionally requires privity and intent to force the victim to submit? The only potential distinction at all is conscious versus unconscious intoxication.

    I disagree. Okla. Stat. tit. 21, § 1111(A)(4) applies "[w]here the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit." This is both broader and narrower than § 1111(A)(5)—which applies "[w]here the victim is at the time unconscious of the nature of the act"—in that it does not require that the victim be unconscious (merely "intoxicated") but does require that the accused have played a role in the victim's intoxication. These two provisions of the rape statute address distinct situations. Neither one would cover every scenario that the other does.

    The ultimate problem is that "mental illness or any unsoundness of mind" does not appear to extend to unconscious or even blackout drunk under that law. Intoxication and unconsciousness are separately covered under A.4. and A.5. of the rape statute. They are not mentioned in the sodomy statute. If either condition falls within "mental illness or any unsoundness of mind" then the corresponding A.4 and A.5 are mere surplusage, because no additional condition is required under A.2. and there is no sentence enhancement for falling under A.4. or A.5.

    I don't think anything I said contradicts this—I just found the rationale articulated by the court to be somewhat lacking. Thinking about it now, though, I do wonder whether a distinction might be drawn. Section 1111(A)(2) applies only where the victim "is incapable . . . of giving legal consent." But I'm pretty sure (please correct me if I'm wrong) that an "intoxicated" person can still give legal consent, at least at lower levels of intoxication. And if that's the case, then there are situations in which § 1111(A)(4) could apply but not § 1111(A)(2).

    Suppose that the accused (let's call him B. Cosby) gives the victim some pills "as a means of forcing [her] to submit" but succeeds only in getting her a little buzzed and lowering her inhibitions somewhat (such that she is still legally capable of consent). Read literally, this might constitute rape under § 1111(A)(4) (depending on whether we read "as a means of forcing the victim to submit" as requiring that the accused was successful in effecting that force). One can at the very least imagine that a careful legislature might want to specifically cover both scenarios, to eliminate the chance that a court would interpret the statute more narrowly than intended.

  26. Kiwanda says

    I wonder how often someone who puts their penis into the mouth of a semi-conscious person gets what they deserve, by triggering the well-known "bite down hard" reflex.

  27. Mike B says

    @Lawrence D'Anna

    As a layman my perception of the whole thing (and the reason I would hope they aren't treated the same) is that unlike "petty" vs "grand" versions of a crime, where the difference is only a matter of degree, but whether or not what you did was illegal at all in the first place.
    It stands to reason that if you're charged with grand larceny, and the value of the good is less, that you still committed the crime, and were still able to mount the same defense to it. The question of how valuable the goods stolen were is largely an academic matter. Whether or not you stole them and whether stealing them was illegal in principle is still pretty much the same question in either case.

    In this case, it's a pretty core difference. You're literally talking about two separate criteria for if what the accused supposedly did was technically illegal at all. Instead of simply being a matter of to what degree harm was done, it's a matter of the actual mechanics of doing what they supposedly did. Objectively speaking, if I'm charged with theft one day, I'm not going to be all that concerned with the value of the supposed stolen goods dancing the line between petty and grand, but if I'm ever god forbid accused of a crime like this, I'm certainly going to care a lot about which laws I need to defend myself under.

  28. That-guy says

    Has anyone noted the fact that there was no evidence of force?

    Not really sure how to say this without being a bit blunt but the act of thrusting an erect penis into a wholly unwilling mouth should inflict trauma. Brusing of some sort, likely to the lips.

    This really seems like the girl was not unconscious when the act occurred. I've known adult women that were utterly non-proficient at that particular maneuver. "Let's just do something else dear" despite said person being enthusiastic and awake.

    Can't imagine how uncomfortable that would be with an unconscious partner. Yet there was DNA on the victim.

    As a result my "read between the lines" instincts make me think this was consensual, in the sense that both people involved were awake but inebriated. They likely dissmissed as it wouldn't make sense to ruin someone's life under those circumstances.

    That being said my experience with victims that have been orally raped while unconscious is non-existent…..so it's possible I'm incorrect.

  29. Noscitur a sociis says

    So does this mean the prosecutor now can't charge him with the crime he's actually accused of because he charged him with the wrong crime then?

    There is nothing in the federal double jeopardy clause that would preclude recharging. None of the state-level double jeopardy jurisprudence I am familiar with would preclude recharging. I don't feel like doing the research to see how Oklahoma handles the situation.

  30. Brian says

    Just a few things to note:

    A) this guy was charged in ADULT court as a youthful offender, NOT in juvenile court.
    B) only certain crimes are eligible to turn a juvenile into a youthful offender: forcible sodomy is one, sexual battery is not.
    C) this case was dismissed by the arraignment judge, not the trial judge, and
    D) the defendant can be prosecuted for sexual battery in Juvenile court, just not in adult court as the overzealous prosecutor had tried….

  31. Penny says

    That's why all laws regarding sex should be the same. ONLY YES, MEANS YES. Any other circumstance is regarded as a "no". Any act of sex should be preceded by a "yes" , or it is rape. Period. No confusion about what constitutes rape, then.

  32. Murphy says

    @Penny

    That sounds grand and merry as a soundbite but could run into some slight problems when you actually tried to implement it in the real world.

    Imagine trying to do the same thing with theft where ONLY A SIGNED SALE CONTRACT IS A SALE CONTRACT. You walk into a shop, pick up an item, walk up to the counter, hand over money equal to the price of the item and walk out, all without speaking. That would be fine in our world but unfortunately in our hypothetical world someone had the bright idea to throw out all the annoyingly complex rules about implied contracts and now you're being charged with shoplifting because nothing was signed.

    Never mind that you're facing the same penalty as some bank robbers who tried to steal 10 million because someone tried to simplify things to ensure "No confusion" by declaring that "theft if theft".

    Somewhere the law has to define what counts as sex without making someone who cuddles her naked sleeping husband and wakes him up with a kiss a sex offender while still being able to prosecute someone who gropes a passed out ex at a party.

    You're deluded if you think your system avoids confusion rather than simply being the seed for a thousand new arguments in courts.

  33. Realist says

    I would like to be the first to volunteer to purchase many shots of 151 for the judges daughters ☺

  34. Lawrence D'Anna says

    @penny

    That's crazy!

    "yes means yes" way too vague to serve as the entire legal definition of rape.

    Sometimes people have sex without saying any words at all. Is that rape? If it is, who's the rapist and who's the victim? Is it possible they raped each other?

    Rape is sex without consent, but both "sex" and "consent" are complicated things to define. We know sex when we see it, but the concept is fuzzy around the margins and those margins need to be precisely defined in law.

  35. Al Petrofsky says

    Brian says

    only certain crimes are eligible to turn a juvenile into a youthful offender: forcible sodomy is one, sexual battery is not … the defendant can be prosecuted for sexual battery in Juvenile court, just not in adult court as the overzealous prosecutor had tried.

    Thank you very much! That explains why the difference is much bigger in this case than just the difference between a 10 year and a 20 year sentencing maximum.

    The statute in question is 10A O.S. § 2-5-206(A)(8)

  36. raphidae says

    @Penny so, then a rapist will just say the victim said "yes".

    We all know there are non-verbal actions that say "yes" much louder than a coerced verbal "yes". That's the issue, and your "solution" does not fix that.

    It would likely make rapists out of a lot of people in a committed relationship, especially since a 3rd party could report a "rape".

    For instance the "affirmative consent" law in CA is retarded. And we can know the legislature knows it, since they never care to give a single example of how to actually PROVE consent was obtained. It's clearly just a way to slant the process against the accused, which is, even more clearly, not compatible with "innocent until proven guilty".

    You think about your past sexual experiences, is there ANY that you are certain you could PROVE you had consent for in court?

    I only have a few, and without exception they are the ones we videotaped. Under "affirmative consent" I'd be a rapist, and so would everyone else.

    Any evidence that there was consent (in some circumstances even video & audio recordings) could also be obtained through threats or other coercion.

    So how does "yes means yes" clear up the confusion exactly? By making most adults legally rapists and then just hoping only the REAL victims report? Ridiculous.

  37. Total says

    Oklahoma said it's legal to rape someone if they're unconscious from drinking!

    So that is, in fact, accurate, but it was the legislature not the judiciary that did it.

  38. Dave says

    I don't understand the problem with using the word "force". Colloquial meaning of "force" certainly fits, ie being made to do something against your will, all the more if by physical means (which did, as pointed out, require some amount of actual Newtonian forces in this case). I get that judges have to follow law, but there is some room for common interpretation and this doesn't even seem like a stretch. I think everyone failed, the legislature, but also the prosecution, and the judges.

  39. Total says

    @Total nope, it's covered by sexual battery. See the article & comments…

    I read the article and comments. What I found was that the Oklahoma legislature left a particular kind of rape out of their laws and thus someone could not be convicted of the crime they had committed.

    Hint: something doesn't stop being a crime simply because one set of laws does not identify it that way.

    Further hint: when people are lamenting this, they are not saying that Oklahoma's laws were not correctly enforced, they are saying that in a clear cut case of rape, Oklahoma somehow messed things up enough that the person who committed the rape was not punished.

  40. Tom Roehr says

    The Court could easily come to a different, and more enlightened result under the "…any unsoundness of mind…" language of Section 2, above. That's probably exactly why the word "any" was put in there. They chose not to do so. A choice freely made, unlike an unconscious woman's. They need some liberals, or someone with a useable brain, on their appellate court.

  41. Al Petrofsky says

    Total says:

    in a clear cut case of rape, Oklahoma somehow messed things up enough that the person who committed the rape was not punished.

    How do you know the defendant was not (and will not be) punished? I haven't seen any statement from the prosecutor that he is not now pursuing a charge under the Sexual Battery law (which clearly provides for criminal punishment for the alleged act).

    Also, it's premature to say this was "a clear cut case of rape". None of the evidence and testimony were tested at trial (with cross-examination, exculpatory evidence, etc.). If the prosecutor subsequently dropped the case, it's presumably because he decided he didn't really have a good enough case to prove the allegations beyond a reasonable doubt.

  42. raphidae says

    Hint: something doesn't stop being a crime simply because one set of laws does not identify it that way.

    It seems to me that it does, since "crime" is basically defined as breaking the law:

    crime
    /krʌɪm/
    noun
    1. an action or omission which constitutes an offence and is punishable by law.
    "shoplifting was a serious crime"
    synonyms: offence, unlawful act, illegal act, breach/violation/infraction of the law

    offence
    /əˈfɛns/
    noun
    plural noun: offences
    1. a breach of a law or rule; an illegal act.
    "the new offence of obtaining property by deception"
    synonyms: crime, illegal/unlawful act, breach/violation/infraction of the law

    No law, no crime aka nulla poena sine lege.

  43. Encinal says

    "Colloquially and morally, the defendant is a rapist. Under Oklahoma law, he's not."

    You had a post taking on fallacious reasoning, and then you had to ruin it with that. Law concerns what is illegal, not what is rape. Even if the law doesn't make something illegal, that's not the same as an affirmative assertion that it's not rape.

  44. Total says

    How do you know the defendant was not (and will not be) punished?

    Oh, jesus, don’t do that “well, we don’t know what will happen in the future” schtick. Aliens could come down from space and make all of this irrelevant. I used the past tense for a reason. He was not punished for his crime. If he is punished in the future, you can start the drum circle and reaffirm your masculinity.

    Also, it's premature to say this was "a clear cut case of rape".

    It’s really not. The perpetrator admitted to having oral sex with her while she was unconscious. That’s rape, and I don’t need a court case to draw that conclusion (hint: I am not required to obey the legal rules of evidence to come a conclusion as a private citizen. Please don’t trot out weak ass arguments that draw on that idea. Also: if you say “innocent until proven guilty,” you are a moron, and I will mock you).

    It seems to me that it does, since "crime" is basically defined as breaking the law:

    Really? You’re going to do the “well, the dictionary says…” thing? Fine! I’ll be a pedantic jerk too. The dictionary also says that a crime is “ a grave offense especially against morality.” So, yes, he raped her. Have a nice day.

    But more than that, you careful thinker you, if the law in 1856 defined an African-American as property and said that the killing of said African-American was not murder, would you agree? If moving the offense into another state made it into a crime, would you find that reasonable? “Oh, look, it’s rape in Nebraska but not Oklahoma. That Seems To Me To Be A Fine Way To Run A Country.”

    Try not to embarrass yourself too much in public.

  45. Al Petrofsky says

    How do you know the defendant was not (and will not be) punished?

    I used the past tense for a reason. He was not punished for his crime.

    I meant how do you know that the case did not end with punishment, or — if it's still ongoing — will not end that way? It's almost always true that a month after a crime, one could say the perpetrator "was not punished", but it's more appropriate to say he "has not yet been punished" if prosecutors are still working on the case. (Things move slowly enough in this country that that's also almost always true one year after the crime.)

    Do you understand that this was just a pre-trial ruling that the case could not continue as charged? It did not say that oral sex with the unconscious is not prohibited by Oklahoma law. It just said that it is not prohibited by the particular law that the prosecutor named in the charging document. There's nothing in the ruling saying that the prosecution couldn't continue by now charging the defendant under the Sexual Battery law, which does specify criminal penalties (albeit less severe ones) for oral sex with the unconscious.

    The perpetrator admitted to having oral sex with her while she was unconscious.

    Where did you learn that? The Oklahoma Watch story says "the defendant said the victim engaged in consensual oral sex with him and it was her idea".

  46. ShelbyC says

    I doesn't sound like they have a strong case for anything beyond sexual battery anyway. The defendant said that she performed oral sex on him, but either she wasn't unconscious, or he's lying.

  47. Total says

    Where did you learn that? The Oklahoma Watch story says "the defendant said the victim engaged in consensual oral sex with him and it was her idea".

    Yes, I'm aware that the defendant claimed that they had oral sex at the time when she had drunk so much that multiple other witnesses said that she was incapacitated and that somehow she had given consent while being incapacitated, but I phrased that more succinctly.

  48. Steve says

    But more than that, you careful thinker you, if the law in 1856 defined an African-American as property and said that the killing of said African-American was not murder, would you agree? If moving the offense into another state made it into a crime, would you find that reasonable? “Oh, look, it’s rape in Nebraska but not Oklahoma. That Seems To Me To Be A Fine Way To Run A Country.”

    Try not to embarrass yourself too much in public.

    Really not seeing the justification for your mockery here, especially with regards to the Nebraska vs. Oklahoma thing. Because to me, it's self-evidently reasonable that different places being different and not having the same people living in them they'll have different laws and the same act will or won't be a crime depending on where it happens. And I don't see any real reason for people in a place to care what happens elsewhere. If an Oklahoman takes a yearly vacation to Nebraska to commit crimes against Nebraskans there, that's not Oklahoma's problem and unless they knew the victims there's no reason for any other Oklahomans to be bothered by it.

  49. Czernobog says

    @DRJlaw:

    I'm trying to come to grips with "Courts generally try to avoid interpreting statues in ways that moot particular limitations and override apparent distinctions made by a legislature."

    If I go to Oklahoma and have vaginal sex with a girl who's too drunk to protest, on booze that I did not administer to her, does that mean that I can't be charged with rape because charging me would moot circumstance 4 as specified above?

    Under this reasoning, it seems like the wordiness of these statutes is creating loopholes, instead of plugging them up.

  50. ShelbyC says

    "If I go to Oklahoma and have vaginal sex with a girl who's too drunk to protest, on booze that I did not administer to her, does that mean that I can't be charged with rape because charging me would moot circumstance 4 as specified above?"

    Sounds like you'd be charged under paragraph 5, no?

  51. ShelbyC says

    "Yes, I'm aware that the defendant claimed that they had oral sex at the time when she had drunk so much that multiple other witnesses said that she was incapacitated and that somehow she had given consent while being incapacitated.

    No, the defendant claimed that she willingly gave him oral sex when she was not incapacitated. How drunk was she during the alleged activity? How much did she have to drink after the alleged activity? Who knows. That's what trials are for.

  52. Jordan says

    I think you (and the trial court) overlook the fact that intoxication at a .34 BAC is, by medical definition in someone of that age and size, "unsoundness of mind of giving legal consent."

  53. Encinal says

    Total

    Yes, I'm aware that the defendant claimed that they had oral sex at the time when she had drunk so much that multiple other witnesses said that she was incapacitated and that somehow she had given consent while being incapacitated, but I phrased that more succinctly.

    Your claim that he admitted having oral sex with her while she was unconscious was not "succinct", it was flat-out wrong. So you're arguing based on false premises, being rude to other posters, and refusing to admit when you're wrong.

    Oh, jesus, don’t do that “well, we don’t know what will happen in the future” schtick. Aliens could come down from space and make all of this irrelevant. I used the past tense for a reason. He was not punished for his crime.

    Really? Because the simple past tense indicates a completed state of affairs. If you wish to simply indicate the current state of affairs, the present perfect is appropriate. Choosing simple past over present perfect very strongly implies that you think that the case is completed, and his lack of punishment is the final state. So either you are not the master of English grammar you think yourself to be, or you deliberately chose a misleading verb tense and then got all snarky when someone called you on it.

  54. Czernobog says

    @ShelbyC: Not necessarily. IANAL (should be obvious at this point) but I think there's a bit of leeway in terms of degree of intoxication between an inability to express coherent disagreement to the act and being unconscious of the nature of the act entirely.

  55. Jordan says

    You're correct – to an extent. I'm not an lawyer either, but I am an emergency medicine provider trained in forensic healthcare. Many states – mine included – have presumptions built into legal procedure such that once you test at a certain BAC or drug blood content, you're presumed unable to consent unless proven otherwise. It's a protection to victims. It's not dissimilar from DUI laws, really. There are plenty of people who aren't technically intoxicated at a .10, but the law in most states says you are because we've established .08 as a good baseline for most adults, so you're legally drunk once you pass .08 (or lower if you're a juvenile.)

    Regardless, .34 BAC in a juvenile – even factoring in whether the person is thin (I don't know what her BMI was), alcohol-naive or not, and accounting for an empty stomach or not – is still 30% of their blood content. Many adults pass out after around 20%. The presumption in an adult with a .34 BAC shouldn't be that a person is competent in that condition, let alone a juvenile.

  56. David W says

    still 30% of their blood content

    No, actually it's 0.3% of the blood content. To get to 30% would require you to literally replace all the blood with spirits. Which conjures up images of a very odd vampiric recruitment.

    Not disputing any medical facts, just the arithmetic.

  57. Jordan says

    You're absolutely correct! Stupid non-Common Core math, right? Nevertheless, that's now those BACs affect the human body.

  58. raphidae says

    @Total You seem to be unable to make the distinction between something being illegal/against the law/a formal crime and something being wrong, morally or by convention (talk about embarrassing!).

    That the law does not adequately reflect what a reasonable person would expect to be illegal is the whole point of the outrage. For most people the act would qualify as rape, but it's a fact that the guy can't be tried for rape nor for forcible sodomy. Seems he can be tried for sexual battery though, so I doubt they just let him walk.

    What's a crime and what is not needs to be clearly defined, that's what the law is for. And if the law says that what the guy did isn't rape then legally it isn't rape. You can still feel that it *should* be rape, but a judge can't take that into account as a lot of people feel a lot of things should be illegal. The legislature will need to fix the law for what he did to legally count as rape (and in the meanwhile the rapist should be tried for sexual battery).

    Out of curiosity: how do *you* define "rape"?

  59. Czernobog says

    @Jordan:

    That's exactly why I'm having trouble understanding this system. Once you have paragraph 2 quoted by DRJlaw above, which recognizes that a person may experience temporary unsoundness of mind and is therefore unable to give consent, why complicate matters by adding paragraphs about the administering of narcotic agents or the victim being unaware of the act?

    And what's more perplexing – why defer to them when paragraph 2 covers the act but the latter paragraphs don't? None of this makes sense.

  60. Mike says

    @Czernobog

    That's exactly why I'm having trouble understanding this system. Once you have paragraph 2 quoted by DRJlaw above, which recognizes that a person may experience temporary unsoundness of mind and is therefore unable to give consent, why complicate matters by adding paragraphs about the administering of narcotic agents or the victim being unaware of the act?

    I think there's some level of intoxication at which a person is capable of giving legal consent. Paragraph 4 defines sex with such a person as rape if the accused is the one who administered the intoxicant with the intent to force the victim to submit. I don't read the paragraph as requiring that the victim actually be rendered incapable of giving legal consent.

    Paragraph 5 could be intended to cover sleeping victims, sleep not generally being considered an unsoundness of mind.

  61. A1701 says

    Maybe someone ought to knock the all the court officials out and orally rape them repeatedly until this ruling gets fixed

  62. Czernobog says

    @Mike: So if I chat a girl up, buy her a drink, go back to her place and we have consensual sex that's still rape because I gave her a drink?

    As for paragraph 5, a sleeping person may not be unsound of mind, but they're still incapable of giving consent. so I'd say it's still covered by paragraph 2.

  63. Mike says

    @Czernobog

    So if I chat a girl up, buy her a drink, go back to her place and we have consensual sex that's still rape because I gave her a drink?

    Only if (a) a drink qualifies as "a narcotic or anesthetic agent," (b) just giving it to her counts as "administering" it, and (c) you do so as "a means of forcing [her] to submit" (as distinguished from merely lowering her inhibitions, perhaps). Granted, the distinction between forcing and persuading is somewhat fuzzy, but let's avoid going down the free will/determinism rabbit hole for the time being.

    As for paragraph 5, a sleeping person may not be unsound of mind, but they're still incapable of giving consent. so I'd say it's still covered by paragraph 2.

    No, paragraph 2 covers only the scenario in which "the victim is incapable through mental illness or any other unsoundness of mind . . . of giving legal consent." By its plain language it does not apply when the victim is incapable of giving legal consent for reasons unrelated to mental illness or unsoundness of mind.

  64. Encinal says

    @Jordan

    Many states – mine included – have presumptions built into legal procedure such that once you test at a certain BAC or drug blood content, you're presumed unable to consent unless proven otherwise.

    But presumably only in matters of sex. For instance, I would imagine that if someone accused of DUI were to argue that they were incapable of giving consent to having their BAC tested due to their intoxication, that wouldn't fly.

    @A1701

    Maybe someone ought to knock the all the court officials out and orally rape them repeatedly until this ruling gets fixed

    1. I take it by "fixed", you mean having court decisions decided according to mob rule, rather than what the law says?
    2. If the defendant had knocked the victim out, then at the very least he could be charged with assault.

  65. Mike says

    @Czernobog

    Why does drunkenness not count as temporary unsoundness of mind?

    In my opinion it ought to. At least for advanced stages of drunkenness.

  66. Brian Z says

    @Czernobog

    Because anytime you drink or go to sleep, your greedy would-be-heirs would execute a hostile takeover of your oil empire. Or your vindictive ex-spouse would petition for sole custody.

  67. ravenshrike says

    Was his BAC tested within an hour or two of hers? No? Then in addition to the claim that he somehow forced her to have oral sex(which given that she had semen on the back of her leg as well as around her mouth means they almost certainly got out of the car at some point to do the deed) they also have to prove that his BAC was low enough to qualify as soundness of mind. That would certainly be an interesting trick since with her BAC ending up at .34 they probably weren't downing brewskis.

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