"I heared a lot of stories an' I reckon they're true
About how girls are put upon by men."
In Tulsa, Oklahoma last year a 17 year old male was charged with Rape and Forcible Oral Sodomy. A 16 year old female had been unconscious as a result of being intoxicated, and when she was taken to hospital, routine examination revealed the male's DNA around her mouth. He claimed she had consented to oral sex, while she had no such recollection.("I Cain't Say No," from Oklahoma! by Richard Rodgers and Oscar Hammerstein II)
The trial judge dismissed the case. This dismissal was appealed by state prosecutors, but on March 24th 2016 the Oklahoma Court of Criminal Appeals upheld the grounds for dismissal, ruling 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."
Sodomy is illegal in under Oklahoma Statute Title 21 O.S. §886, which says that anyone “who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast” may be punished by a maximum of 10 years in prison. This is despite the US Supreme Court striking down sodomy laws in 2003. The definition of sodomy in Oklahoma includes both anal and oral sex.
The state is unlikely to pursue charges for sexual acts between consenting adults, and Oklahoma is rated by various LGBT+ groups as relatively tolerant as a consequence. However the crime of “Forcible Sodomy,” in which one person does not consent or is unable to provide legal consent, is a severely punished sex offence.
The law prohibiting rape in Oklahoma pertains only to vaginal and anal sex. This was the reason the initial rape charge was dismissed and the state sought to pursue the accused with a change of Forcible Sodomy instead. But, while it is illegal to rape someone "where the victim is at the time unconscious of the nature of the act and this fact is known to the accused" in Oklahoma, in the words of the court ruling, "the Legislature's inclusion of intoxication circumstances for the crime of Rape [...] is not found in the [...] requirements for the commission of the crime of Forcible Sodomy." Provision is made for coercion, mental illness, abuse of public office or a teaching position, and the age of consent, but not intoxication.
This omission and inconsistency means that the law of Oklahoma is a twisted, surreal Venn diagram where sex, rape, and sodomy overlap each other to leave consensual anal and oral sex illegal while non-consensual oral sex is legal if one of the participants is unconscious as a result of intoxication.
While we are considering inconsistencies, it seems the definition of rape in Oklahoma allows a rapist the defence that he was unaware his victim was unconscious, that "this fact" is not "known to the accused". We can contemplate the possibility that a rapist claims his unconscious victim nevertheless stirred enough in her sleep during some drunken encounter for him to believe she was awake and that he interpreted these stirrings as consent. Would this lead to dismissal of the case in Oklahoma? Is this another legal car crash that is just waiting to happen in Oklahoma? Do we have the ridiculous situation where a rapist in Oklahoma is excused for violating his victim orally because she was asleep, and for violating her in other ways because he didn't realise it at the time?
The definition of rape must not make any reference to the assailant's understanding of consent, only to the victim's. When we consider the law regarding hate crime, in general this is understood to have occurred entirely on the basis of the victim's perception. The perpetrator's interpretation of events does not determine whether a crime has occurred. It does not matter what is "known to the accused." Otherwise a perpetrator can always rely on a defence based on their own subjective and unverifiable perception. The same must be true of laws regarding rape. However it would seem the legal definition of rape in Oklahoma admits this possibility.
And this is the 21st century. Oklahoma has been a State for 109 years.
I hesitated to post this article because the issue here, superficially at least, is just one particular instance of the law being an ass. But this has wider ramifications. Is the failure on the part of legislators to prevent this omission from existing on the statute book a consequence of a culture of neglect towards areas where the law impinges upon female experience? Surely this situation could have been anticipated by competent legislators who were paying attention at some point over the last 109 years, just like the potential ambiguity in the definition of rape discussed above?
In the final analysis it doesn't really matter what we think.
All that is matters is that this degree of legislative negligence, real or imagined, can be perceived as granting licence to disregard the requirement for consent by those who need firm guidance about what is and is not acceptable behaviour the most. 17 year old males are not short of cues about how to behave and the urge to act on them, and so we must not mix our messages. After all, consensual oral sex is only permitted in Oklahoma because the authorities turn a blind eye to something that is actually illegal. What message is sent by finding that, under certain circumstances, oral sex without consent is in fact legal? Lack of prohibition will be interpreted as permission by some.
This case is part of a broader context in which young men see their peers get away with rape, like the individual in this case, or face a derisory level of punishment, like Brock Turner, who is being released on Friday after serving half of what was already a ridiculously brief sentence, and a host of other widely publicised cases.
These young men are exposed to the relentless institutionalised misogyny of the frat house and their expectations are distorted by violent online pornography and an endemic rape culture perpetuated by rape apologists like Roosh V. This is a culture in which claims are made that must be challenged, not confirmed. These crimes are committed by people who either think what they are doing is acceptable (entitlement) or that they can get away with it (impunity).
It doesn't matter that we may understand the difference between the spirit and the letter of the law. We need to remove all signals that can be interpreted as permission by those inclined towards sexual violence. We must eliminate impressions of entitlement or impunity. Otherwise we continue to expose our young men and women to a sickening and persistent rape culture. This verdict, irrespective of the reason for it, regardless of its legal probity, is just such a signal to boys getting drunk at parties on college campuses across America and elsewhere this Fall. Other girls will inevitably render themselves unconscious through intoxication at these same parties. It is up to us to make sure it is "known to the accused" that there are no circumstances, no entitlement or impunity, that will permit assault.
We are struggling to deal with the torrent of misogyny unleashed by the internet and its impact on the minds of young men. Judgements like this don't help.
In the words of the song I quoted at the top, a song penned with innocent enough intentions and depicting circumstances in a young Oklahoma Territory full of promise and hope on the eve of statehood in 1906, but lent an unwelcome new significance by recent events:
"Whatcha gonna do
when a feller gets flirty
An' starts to talk purty
Whatcha gonna do? [...]
"Other girls are coy an' hard to catch
But other girls ain't havin' any fun!
Ev'ry time I lose a wrastlin' match
I have a funny feelin' that I won! [...]
"Though I can feel the undertoe
I never make a complaint
'Till it's too late for restraint
Then when I want to I cain't
I cain't say no!"
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