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Oral sex is not rape if victim is intoxicated, unconscious, court rules

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An Oklahoma court has upheld a ruling not to bring charges of forcible sodomy against a defendant because the victim was drunk at the time.

The ruling relates to a 2014 case, where a 16-year-old girl said she was sexually assaulted by a schoolmate after drinking and smoking marijuana in a Tulsa park.

After the girl became incapacitated and unable to walk - her blood-alcohol level was later found to be four times the legal limit to drive -- two friends carried her to her assailant's car, who allegedly forced her to perform oral sex.

The alleged perpetrator initially told police that the sex act was consensual, but the girl told them that she had no memory of it.

The then-17-year-old boy was charged with first-degree rape and forcible oral sodomy, according to Oklahoma Watch, a nonprofit investigative journalism body that's been following the case. The rape charge was later dropped due to lack of evidence.

A district court dismissed the forcible oral rape charge based on the wording of the state's forcible sodomy law. It is distinct from the laws for rape, which is defined in the state as a forced act of "sexual intercourse involving vaginal or anal penetration." The ruling was appealed to the Oklahoma Court of Criminal Appeals, which upheld the lower court's decision.

The court dismissed the charge because unconsciousness and intoxication are not mentioned in the state's forcible sodomy law. Essentially, the court would've been rewriting the law if it'd found the defendant guilty.

Rewriting the law

The appeals court states that it upheld the earlier ruling because to do otherwise would, in effect, be rewriting the law to fit the case in question.

"We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language," it said.

Benjamin Fu, director of the special victims unit for the Tulsa County District Attorney's Office and the lead prosecutor on the case, called the decision absurd.

"I don't believe that our legislators or our citizens believe that we as prosecutors or as a public should be focusing on the conduct or choices that a victim made in order to determine whether or not an assailant should face criminal liability," Fu told CNN affiliate KTUL.

Assistant Director for Domestic Violence Intervention Services Donna Mathews says it's imperative that the language of the law be changed. "The legislature has the job of making it right and the rest of us as the public the job of reaching out to our legislators to say 'we want you to do this'," Matthews told the station.

After the ruling, state Rep. Scott Biggs -- who co-sponsored the initial bill -- announced plans to amend the "legislation to define forcible sodomy in a way that includes unconscious victims," his office said in a statement.

"If they need more clarification, we are happy to give it to them by fixing the statute," 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."

Shannon McMurray, an attorney for the defendant, told Oklahoma Watch she thought prosecutors handled the case poorly.

"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."

Fu expressed concern that, while the verdict remains "unpublished" -- meaning that it cannot be used as precedent -- the case would be used to inform other, similar defenses.