On March 24, an Oklahoma appeals court unanimously ruled that “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” (PDF). Translated into English: Forcing a woman to perform oral sex while she’s blackout drunk isn’t rape.
Oklahoma Watch first reported the shocking decision, which Tulsa County assistant district attorney Benjamin Fu called “dangerous” and “offensive.” Fu served as the lead prosecutor in a case against a 17-year-old boy who claimed in a police interview that a 16-year-old girl he drove home from a park had consented to oral sex. The girl said she did not remember what happened and another boy who rode in the car confirmed that she was having difficulty staying conscious. After she was taken to the hospital early the next morning, tests showed that her blood alcohol level was a staggering .341 and that traces of the boy’s DNA were around her mouth.
But because she was intoxicated—and because the alleged rape was oral rather than vaginal—the court determined that Oklahoma law did not apply to her case. Oklahoma’s “rape in the first degree” statute is fairly comprehensive, applying to victims who were mentally ill, intoxicated, unconscious, physically coerced, or threatened with violence. But the “forcible sodomy” statute only lists two barriers to consent: mental illness and violence. The difference between the statutes might seem like a technicality, but it’s one that the appeals court took seriously, writing that they could not “enlarge a statute” in order to prosecute the boy.
More alarming than this conclusion is the fact that these bizarre loopholes and double standards in rape legislation aren’t just confined to one state.
As of 2013, the FBI defines rape as “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” The agency’s prior definition—“the carnal knowledge of a female forcibly and against her will”—was not only archaic, it was ambiguous about what, precisely, counted as rape: Did “carnal knowledge” include oral rape, anal rape, rape with an object? But even though the federal government has now laid out a crystal clear and expansive definition of rape, several states—not just Oklahoma—still regard nonconsensual vaginal penetration with a penis differently from other, equally serious forms of forcible sex.
As Jennifer Gentile Long, CEO of AEquitas, a resource for prosecutors in cases of violence against women, told The Guardian of the Oklahoma case, “There are still gaps in the ways laws are written that allow some cases to fall through the cracks. This case seems to be one of them.”
Georgia, for example, has a separate “aggravated sodomy” statute that covers “any [nonconsensual] sexual act involving the sex organs of one person and the mouth or anus of another.” But the state takes “rape,” which it defines solely as vaginal intercourse, more seriously.
Georgians convicted of rape can be executed or sentenced to life in prison without parole. Those convicted of “aggravated sodomy,” on the other hand, can only get a maximum punishment of life with parole. Both are serious penalties but the slight difference between them sends the message that vaginal rape is a more serious offense than anal or oral rape.
Kansas’s rape law contains language aimed at offenders who deceive their victims into believing that vaginal penetration—whether by a penis, a finger, or an object—is “a medically or therapeutically necessary procedure” like a medical exam or a “legally required procedure” like a cavity search. That specific protection is absent from its “aggravated criminal sodomy” law for oral and anal contact or penetration.
Oregon state law makes subtle distinctions between sexual offenses based on what the offender used for the nonconsensual penetration. The state’s criminal code has virtually identical “rape” and “sodomy” legislation but it also contains a third category of “unlawful sexual penetration” that only applies if the penetration is done “with any object other than the penis or mouth of the actor.”
Oregon’s first-degree rape and sodomy statutes contain language designed to prevent child sexual abuse, automatically defining the offender’s siblings, half-siblings, children, or stepchildren as victims if they are under the age of 16. But the “unlawful sexual penetration” statute for sexual offenses committed with an object strangely lacks that language.
The loopholes don’t end there. Some states even dole out different punishments or have different standards of force for marital rape, as The Daily Beast reported last June. Ohio state law, for example, still technically allows a husband to drug and have nonconsensual sex with his wife. A bill to address this situation is still pending.
This week, Oklahoma lawmakers are rushing to close their own “forcible sodomy” loophole now that it has been exposed but, around the country, others remain, with possible judicial disasters lying in wait.