With Court Ruling, Sodomy Law Doesn’t Apply When Victim Is Unconscious

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Clifton Adcock/Oklahoma Watch

The Tulsa County District Attorney's Office filed sodomy and rape charges against a 17-year-old boy in April 2015. The case was ultimately rejected.

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an offense, enlarge a statute beyond the fair meaning of its language,” the appeals court wrote in what is called an “unpublished opinion,” meaning it cannot be cited as a precedent.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

  • Josh Ellard

    We should hold everyone accountable for his or her actions, no matter how rich or poor the person is

    • Mark Bigger

      i agree, yet this court needs to be challenged by we the people in a serious and peaceful manner

      • Jennifer Lapsner

        Why? Why not challenge the legislature that made the deficient law? Why not actually behave as is proper in a democracy? Instead of just throwing a fit.

  • rebeccaaguilar

    Did Judge Pickerell have to follow the higher courts ruling? And is Judge Pickerell the same judge in legal problems in Tulsa and maybe not happy with DA office. Wouldnt there be a confliect of interest? http://www.tulsaworld.com/news/courts/pawnee-county-judge-patrick-pickerill-indicted-by-oklahoma-s-multicounty/article_0649991c-ef0e-5071-8316-ee6185e082e2.html

  • kim dyer

    May their teenage children or grandchildren be “not raped” the same way.

    • Damian Ritter

      It’s not very nice to wish harm on innocents.

  • Wearenotperfect

    Where in the hell were these kids parents and why were these kids participating in drug use and under age drinking? I know I get it, I did some pretty stupid thinks when I was younger but when are we going to stop blaming everyone else for our stupid mistakes! Yes, it is awful and unfortunate anytime someone is hurt and raped, and if it can be 100% proven that some kind of wrong doing was committed, ether by drugging an individual without them knowing or physical force and harm, then anyone at anytime can claim sexual assult even if it was consensual. I know it is a hard line to walk but come on people, take some responsibility for your actions. Again, where the hell were these kids legal guardians?

    • Anon

      She told her Mom she was spending the night with a friend who happened to live across the street from the park. No, she shouldn’t have been drinking but she did NOT deserve to be orally raped and did not know that drinking that much could have resulted in this. The boys tried to hide it and then deny it. DNA does not lie. Had you never done anything behind your parents backs when you were young? He violated her and she has to live with that.

      • Lucifer Christ

        There is no proof that it wasn’t consensual. The girl said she doesn’t RECALL agreeing to it or the act itself, that doesn’t mean she was unconscious when the act was preformed, it just means she had a blackout night.

        If she agreed to it and doesn’t remember, then you’re wanting to prosecute a boy who did NOTHING wrong.

        • Evan Vernon Giles

          Dope tell me how do you prove consent unless you record every conversation you have ever had you can never prove consent
          What you need are witnesses who can state facts and in this case all the witnesses said she was TOO drunk and blood alcohol readings prove that she was TOO drunk to give consent

          And yes the problem here is with the law and the prosecutor they should have looked more clearly at the wording of the statutes

      • Wearenotperfect

        Your right, I agree with you that she did not deserve what happened to her and she is going to have to live with that just as the young boy will have to live with the fact he made a big mistake and that no one can be trusted to keep their word when they concede to having sex, intoxicated or not. Yes, I did some stupid things when I was young as I’m sure you did as well but one lessons my parents gave me at a very young age was that I am responsible for my own actions and the consequences of those actions as well as not putting myself in situations that are out of my control. Some girls can be very promiscuous and persuasive now a days and most of us learn from our mistakes but does the boy deserve to go to prison for 10 or 15 years and add to our mass incarceration problem this country has already? In my view the boy as wrong as well as the girl, and please don’t give me the “what if that was your daughter” bit, I raised my kid with the same values that I was raised with. Or maybe I should just jump on the bandwagon like a lot of people and blame everyone else for my mistakes!

        • Anon

          If you had seen her bruises and cuts in her mouth, you would understand. You can say you “raised them right” but they all have a free will. If this happened in your family, you would sing a different tune. It was an end of school party and yes, they were all wrong for drinking but she did NOT deserve to live with this shame the rest of her life and people like you are why more girls don’t come forward when they are violated. No one deserves this, especially when you think you are safe with your school friends. He lied and said, “I found her like this in the park”. All we wanted was youth probation so that he could get some counseling. Didn’t happen. He is free to do it again. So teen parents, don’t let your kids ever go to a party. And oh, by the way, the family didn’t press charges. When she was taken to the hospital, the State of Oklahoma filed the charges against him. It wasn’t her against him, it was the State against him.

          • Wearenotperfect

            Anon, I do understand and I do get it and I never once said I condone what the young boy did but you hit the nail on the head about having “free will”. I strongly believe in a person’s right to free will but then you need to accept the consequences. My family is dealing with an injustice and have been for a long time so we know first hand the feeling of being taken advantage of and what the tone of that song sounds like. The difference is in our case the individual was aware of their surroundings, was told one thing would happen but something else occurred. Listen, I’m the first to stand up for people that have unwillingly been taken advantage of, yes she was intoxicated I get it, but if the state wants to charge one individual with a crime why aren’t they charging the rest of the kids at the party with negligence. I don’t expect you to agree with me and that’s fine. I’m very sorry this happen to her and wish our laws were more straight forward and fair, that our government and justice system was not so overreaching in some cases and over the top in other cases but “fair” means different things to different people and that’s something we need to live with. Bottom line is when are we going to start being responsible for our own actions, that’s all.

      • Anon

        If you had seen her bruises and cuts on her mouth, you might be singing a different story. The judge didn’t allow those pictures to be shown.

    • Carol

      Trust me on this, if someone is so intoxicated they pass out, and they are actually suffering alcohol poisoning, the LAST thing they would want to do is give a guy a blow job. So yes, I’d say this was done without the girls consent.

      • Wearenotperfect

        Yes Carol, I agree with you, what the young boy did was wrong, I get it. All I’m saying is have some responsibility or maybe we should blame his and her parents, grandparents, the school system for not teaching them how to behave, the police for not doing their job and protecting her, the parks service department for not watching these kids drinking and doing drugs or blame me for not being there to teach them what and what not to do. It is a males obligation to protect women but some men have lost that humanity somewhere along the line.I was upset when I read about this but then it was said she was drinking and doing drugs as well and I said to my sell “well, there you go, I’m out!”

      • Scott Fulkerson

        No, this is not true. Alcohol can cause you to pass out without a state of alcohol poisoning, because it can potentiate the sedative effects of other substances, such as SSRIs, anticholinergic agents found in OTC allergy / cold medications, etc.) Also, some people do not tolerate even a mild sedative effect well enough to stay awake, so being at around the legal limit may be enough to cause some people to intermittently pass out.

  • Catori Shadi

    So it’s possible to sexually assault any quaraplegic, if they have no easy means of communicating with strangers – or anyone who is asleep, too. Stephen Hawking is in trouble then, if he ever goes to Oklahoma.

    No means no, is OK.
    But this is why YES means YES is 1,000,000 times better.

    • Riggsveda

      And of course, by the logic of the court, if someone is too profoundly brain-damaged to raise an objection to rape, or if a person is in a vegetative state and can’t say no, Oklahoma law would find no fault in someone using THEIR orifices for sexual pleasure, either. And since Oklahoma has some of the most burdensome anti-abortion statutes in the nation, those people would just have to suck it up and birth, if they became pregnant. The children resulting would be immediately cared for in the most diligent and loving way, I’m sure. You’re SO pro-life, Oklahoma.

      • Jennifer Lapsner

        This is not on the court, it is on the legislature. The rape statute explicitly accounts for intoxication, which demonstrates that the legislature understands the distinction. The fact that the forcible sodomy law does not is a failure in making laws, a responsibility that belongs to the legislature, not the court.

    • benanov

      Quit your fearmongering. There’s a law against ‘sexual battery’ that most likely applies in this case, and the fault is that the prosecutor did not bring that charge (if I had to guess, it’s either ignorance, or the fact that the charge doesn’t have as much jail time as rape).

      • Scott Fulkerson

        That has to do with the fact that they didn’t file lesser-included offenses at the time of filing. The rules of criminal procedure allow amending the information, but there is a deadline for doing so, which is strictly enforced. It is generally a good idea to charge lesser included offenses in the information. This is because while the jury can only convict a defendant of only ONE of the offenses per a single act (due to double jeopardy ) The jury cannot convict of a lesser included offense unless it is actually filed on the criminal information, or is contained within the indictment, whichever the case may be. So basically its better to charge most of the charges that might be applicable (in order to make sure you comply with the time limits.) and then drop the ones that don’t upon closer examination, because the state may dismiss a charge at any time, so long as the defense agrees to the dismissal.

    • Scott Fulkerson

      Well, the way people want to make this out, is god forbid I have a few drinks (enough to have a buzz, which defines me as over the legal limit for “intoxication”) and then have sex with my boyfriend. Because Gee, I can’t “consent” because I’m “intoxicated”… give me a break.

  • Richard Winger

    The terrible harm by rape or other forcible sexual activity (for the unwilling partner) is the psychological trauma of having one’s will overwhelmingly defeated. That is a profoundly horrible experience. But when the passive person is unconscious, there is no psychological trauma. So I am glad the court acted as it did.

    • Stephen Samuel

      The personal violation is disturbing. Consider the emotional effect of being broken into while you are away from home. There is a real sense of personal violation, even though you weren’t personally there when it happened. Then multiply the effect by a couple orders of magnitude for the fact that it was *your body* that was violated while you were ‘away from home’.
      The effect is very real.

    • Tracy Hilliard

      I’m sure you wouldn’t mind getting roofied and have someone mouth rape you then. I mean, since you wouldn’t remember, you’d just find out when you wake up choking on spunk.

      The psychological harm isn’t just “being overcome”, but straight up, that someone violated your body for their own satisfaction without having the decency to get permission first. Otherwise children who are exploited for sex would also not “be raped”, given that they don’t have the will in place to know that what’s going on is wrong.

      • BigTBone

        Yeah, that has got to be a troll. No respectable human would appreciate this verdict.

        • BigWhiteDog

          So far this idiot isn’t alone here! His boy Scott Fulkerson seems to thing date rape is cool if they are drunk.

          • Scott Fulkerson

            No, there’s a big difference between taking a substance without your knowledge (i.e. the way a roofie is deployed) Vs. Knowingly and intentionally consuming alcohol, particularly where its a crime for you to be consuming alcohol in the first place. When you VOLUNTARILY consume alcohol, you are implicitly consenting to the CONSEQUENCES that may occur as a result of consuming alcohol. In this case, the alcohol was consumed voluntarily, so its NOT as if the defendant used the substance to chemically restrain the victim, which is what one does when administering a substance to a person without their knowledge, which is tantamount to using physical force to acomplish the objective sought.

      • Wearenotperfect

        First of all, she was not roofied. She voluntarily participated in under age drinking and drug use. Second, if there was proof that she was drugged involuntary then we wouldn’t be commenting on this site.

    • Kolya2

      Wow! You’re the 3rd rapey person we’ve met today.

  • Kayleigh Herbertson

    That poor girl.

  • JPH

    You can’t substitute intoxication and/or unconsciousness for consent.

  • Stephen Samuel

    Checked the actual law.. http://www.okcca.net/online/oujis/oujisrvr.jsp?o=250
    there are two provisioons that apply here,

    [Fourth, committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent].
    [Fourth, where the victim was at least sixteen but less than twenty years of age;

    So, just the fact that that the victim was between 16 and 19 seems to be sufficient to support a charge.
    However the element that was the basis of the drop, here seems to be “committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent”.
    I would see being so intoxicated that you qualify as alcohol poisoned would classify as being an “unsoundness of mind [rendering a person incapable] of giving legal consent”. I have no idea why the courts would not consider this to be the case. It would seem to require some severe mental gymnastics.

    • Jennifer Lapsner

      You missed the sixth that states that the defendant must be over 18, which he wasn’t.

      Also, these are some of the comments that go with the law: “Oklahoma has two sodomy statutes, 21 O.S. Supp. 2010, §§ 886, 888. Force is not an element of sodomy under 21 O.S. Supp. 2010, § 886. Hinkle v. State, 1989 OK CR 4, ¶¶ 4-5, 771 P.2d 232, 233. Proof of force is required under 21 O.S. Supp. 2010, § 888, however, unless the victim was under 16 years of age or mentally ill or the sodomy was committed by a state employee or contractor upon a person in the custody of a political subdivision of the State.”

      Intoxication is not mental illness or unsoundness of mind in any legal sense.

      • Scott Fulkerson

        Intoxication has been held under certain circumstances to void a consent. Particularly, intoxication may nullify waiver of Miranda V. Arizona warnings, based upon the notion that the intoxicated person is incapable of fully appreciating the nature and legal ramifications of waiver. (where waiving one’s rights requires informed consent.) The difference, however, is that we only need “consent” within the sphere of rape / sexual assault laws, as opposed to INFORMED consent, which are TWO different things. Consent is saying yes or no to an act. INFORMED consent, on the other hand, requires that one be able to fully appreciate the consequences of the consent. Unfortunately for the state, rape laws use the consent standard, and NOT the informed consent standard.

        • Big C

          Intoxication voids consent, but it does not create “unsoundness of mind.” This is why voluntary intoxication isn’t a defense to criminal acts, but mental illness is.

    • benanov

      OK has a Sexual Battery law that was not applied. That’s the prosecutor’s fault.

    • Scott Fulkerson

      “Unsoundness of mind” is typically defined as a chronic condition that does not qualify as a mental illness, outright. The language is meant as a catch-all clause toward the end of mental retardation, etc. , and as such is not the more temporary nature of ‘intoxication”, which is an effect that diminishes short-term.

  • LHFraser

    So this would apply to necrophilia as well, then? Just trying to plan my company’s next retreat. SO many fun choices these days with SJW and boneheaded pervs being in charge of society. Why am I thinking of Frankie Goes to Hollywood?

  • Lucifer Christ

    As far as the ruling and the reasoning behind it goes, I find it retarded.

    As far as the story goes, there are two scenarios that could have occurred:

    1. The boy was giving the girl a ride home, she offered oral and he accepted.

    2. The boy was giving the girl a ride home, noticed she was passed out and took advantage of her.

    Since the girl doesn’t remember, are we to just assume that she didn’t consent to it? I’ve had plenty of nights that I did stupid things that I don’t remember doing, that doesn’t mean I didn’t do them.

    What if the boy didn’t remember it either? Would we assume rape if his DNA was found on her, but neither remembered anything?

    We’re so used to women being victimized that we forget there are two sides to every story. As far as THIS story goes, we only have the one side, yet we refuse to believe it.

    • Scott Fulkerson

      I only partially agree with what you’ve said here. First, I have to conclude that the reasoning behind the courts ruling is rooted in separation of powers. The court cannot insert clauses into a statute that are not explicitly written into it. With the Burglary statute, as an example, the state didn’t explicitly define the term “breaking” for purposes of the statute, and therefore the courts are left to interpret the definition. However, the sexual assault laws explicitly define the term “force” for purposes of those laws. This leaves little room for interpreting what the legislature “intended” to mean as the definition of “force”, when they explicitly define it and then leave out anything which remotely describes a voluntary state of intoxication within the explicit definition.

      That said, I agree with you on the point that being drunk doesn’t qualify one to claim rape out of buyer’s remorse. If you don’t have the slightest idea of what a substance, such as alcohol, could possibly do to you, then you shouldn’t be using that substance. Its the whole concept of natural consequences for one’s actions. IF the victim had been given drugs or alcohol involuntarily or without their knowledge (i.e. such as a roofiee, etc.) Then it becomes a different ball game entirely.

      Then we have the whole issue of consent- If one “Can’t remember” if they gave consent or not, then it could be reasonably possible that they did, and thus, because the standard of proof is “beyond a reasonable doubt”, it becomes impossible to meet the burden of proof, without an outside and objective witness to the events. As for unconsciousness, There’s nothing I see in the law that states that consent cannot be implied by default. In fact, this concept is written into other areas of law explicitly, such as the automatic consent laws with respect to breathalyser tests in DUI cases. Thus, if we require Consent to be “explicit” in order to be “vaild” consent, we then nullify the DUI statutes in just about every state of the union.

      • hereNT

        A blood alcohol level like she had shows pretty definitively that she was not aware of alcohol’s full consequences. That’s drinking way too much way too fast, and getting to the point of dying from overdose. Most 16 year olds won’t understand that.

        It’s impossible to give consent in that condition.

        And, no, consent is not given by default because you are unconscious.

        Sure you’ll probably have some reason why you think it is, seems like you have a whole lot of knowledge about exactly what line you can walk to legally get away with raping someone that’s intoxicated.

        Why is that exactly?

  • benanov

    The prosecutor screwed up. While the rape law has a loophole, the prosecutor could have brought a Sexual Battery charge, and didn’t.

    So all you people whining that “this isn’t rape” are…well…wrong. It’s still quite illegal, a felony, in fact:

    “Physical contact for sexual gratification without the consent of the other person is a felony in Oklahoma. Sexual battery includes the unwanted touching of the breasts, buttocks, or genitals. The term “sexual battery” is so broad that it is often used by prosecutors to label any sexual act that falls short of rape.

    In order for a person to be convicted of sexual battery in Oklahoma, the prosecution must prove that the alleged sexual battery was:

    1. Intentional

    2. Sexual in nature (“lewd and lascivious”)

    3. Not consensual”

    (Source: http://www.articlesfactory.com/articles/law/oklahoma-sexual-battery-law-and-defense.html)

    • Scott Fulkerson

      To which the state of Oklahoma has the burden of proof to prove each of the elements Beyond a reasonable doubt. In this case there were no witnesses to the actual sexual act. The “victim” testified that she was too intoxicated to remember whether or not she gave consent, and the state cannot prove that she didn’t through extrinsic evidence. She CHOOSE to drink alcohol in the first place, which means that she admitted to having committed a crime, because it is a crime for persons under 21 to possess or consume alcoholic beverages.I’m also willing to bet that she knew that alcohol might have the effect of rendering a person extremely intoxicated or even unconscious, Being Drunk does not entitle a person to claim “rape” out of buyers remorse. Just because you later Regret having given consent doesn’t mean that you didn’t give consent in the first place, and the state cannot prove that the victim was actually unconscious at the moment of the sexual act, because the victim doesn’t remember and there were no objective witnesses. Therefore, I would have to conclude that in this particualr case the state is unable to prove the consent issue, with reasonably reliable evidence.

      • BigWhiteDog

        You really are a piece of work, aren’t you? Victim blame much? Better let anyone you are around to not drink since you consider them fair game.

        • Scott Fulkerson

          No, more like applying the law fairly, which states that the burden of proof in a criminal case is reasonable doubt. Reasonable Doubt, doesn’t mean beyond any doubt whatsoever, but that the state can prove that there’s no “reasonable” way to interpret the facts and evidence in a way favorable to the defense. As applied here, this means if there’s a logical reason to believe that the victim COULD have given consent to the sexual act, and then “not remembered” having given that consent, then we have ‘reasonable doubt” on the consent issue, which requires aquittal of the charge under our constitution, as a matter of law, UNLESS the state can submit additional evidence to prove that consent was not given. There were no witnesses present during the sexual act besides the victim, who “does not remember” (and so can offer no evidence one way or the other to answer the question.) and the defendant, whom testifies that the consent WAS given. The physical evidence only proves two things: (A) All the DNA evidence proves is that a sexual act took place. DNA evidence in and of itself cannot prove whether that act is consentual or non-consentual. The sexual assault kit obviously did not document any physical injuries that would have been specific to sexual assault, based upon my reading of the facts of the case. (B) we have evidence that the victim was voluntarlily “intoxicated”, and (C) we know the victim is under the legal age to consume alcohol which is 21. This means that the “victim” is guilty of being a minor whom consumed alcohol, which is a criminal misdemeanor. Therefore, the evidence proves that the defendant did not cause the intoxication. Generally speaking, the courts are not in the business of freeing a person from the effects resulting from a crime they choose to commit. The fact that the defendant is male and the victim female is irrelevant to the case to the extent that it is unconstitutional to allow a party’s sex to influence the way we apply the law to them. (i.e. The Fourteenth Amendment equal protection and due process clauses, among other things.) This means that intoxication, in and of itself, cannot nullify consent. We hold that consent may be “implicit” in other areas of law, as well. (i.e. the concept of automatic consent to breathalyser tests.) However, even then the law still holds that the implied consent may be Withdrawn, but it must be withdrawn explicitly. What you are asking one to do, is to apply the law and rules of criminal procedure in an arbitrary way, which is exactly what our form of government is set up to prevent. As the late Justice Scalia once said “A good judge whom makes rulings based on what the law is, makes decisions that he frequently does not personally agree with.”

        • Wearenotperfect

          Please don’t be mad because Scott Fulkerson make’s a great point. It’s sad and unfortunate that this happen to her but she should not have been indulging in marijuana and under age drinking. I doubt that this ruling will stir any pot to address the overwhelming number of stupid, pointless, overreaching laws that our saints in government have created.

      • Kolya2

        Do women ever describe you as… Rapey?

      • benanov

        Agreed. I think a lot of it could also have hinged on the prosecution proving that the victim was too drunk to consent (and as such unable)…but again, if the rape law doesn’t apply, it doesn’t matter.

        The sexual battery law is very broad; I’m surprised the prosecutor didn’t try to get that one to stick.

        • Scott Fulkerson

          The problem with that theory is that both were at the same party, and probably consumed the same amount of alcohol. So, if we are to consider the victim too intoxicated to form consent, we also must conclude that the defendant was too drunk to form the element of intent, since the element of intent has been held to diminish much faster than that of consent, but follows the same legal theory in principle.

          • Chris Graue

            You are making an assumption, not only that they drank the same amount of alcohol, but that they both had the same alcohol tolerance. Neither of these points were mentioned meaning he could very well have been a predator waiting for a chance to get her, or any other drunk girl, away from the group to take advantage of them. He may not have made her drink but her being intoxicated is NOT an excuse for him to take advantage of her. On the contrary… it is when you should be at your most chivalrous so as not to get yourself into this kind of situation, knowing the drunk person may regret their actions later… or not remember the consent at all.

          • Anon

            And the fact that it was 2 hours (which none of you know) from the time the boys carried her to his car because she was completely passed out, then he took his friend home and then took her to his ex-girlfriends house to try to get her cleaned up. She had thrown up everywhere, including all over him. He asked his ex-girlfriend for a new shirt. The ex-girlfriend thought the victim was going to die because she had throw up all in her mouth and they had her rolled up in a ball in his front seat (the back seat was completely full of trash and pizza boxes. Her drug test was clean, her alcohol level could have killed her. It was binge drinking. We were told the boys were giving her shots of vodka. I guess we need to go to every college in the US and arrest every college student who is under 21 because drinking is rampant there. But, that is free will and how do we fix that? She was completely passed out for 6-7 hours and remembers nothing. Didn’t wake up until 6AM at the hospital with all her family around her and she was bruised and battered. Looked like she had been punched in the face. But I guess some of you think she asked for that. Again, it wasn’t her against him. The State of OK filed the charges. The family just wanted him to get counseling, never to do this again. She made a mistake in drinking but she did NOT deserve to be mouth raped. He made fun of her at school and she finally left school to avoid him. Her anxiety has totally affected her life. She is not graduating with the people she went to school with for 12 years. She will never be the same.

          • Alfred Hussein Neuman

            Perhaps she should be prosecuted since she did the touching and performed the sex act.

  • Rose Lopez

    First off when you know you start to get drunk at a party a club a friend that’s when you know to stop
    But it still doesn’t make it right for them anyone to take advantage

    • NDForever

      rape is bad indeed. But there was no rape. Even the pose upon concedes that.

  • Scott Fulkerson

    The thing is that if one is intoxicated, and “cannot remember” giving consent, this does NOT mean that they didn’t give consent. It is common knowledge that Alcohol lowers inhibitions. Knowing that, one should be aware of the consequences. Plus we have the fact that the victim committed a CRIME, known as Minor Consumption of Alcohol, for which she should have been charged with, convicted of, and served jail time for.

    • BigWhiteDog

      It’s not considered “informed” consent and one can not give consent to something when you are severely impaired. Nice job attacking the victim though.

      • Scott Fulkerson

        Informed consent means that I must inform you of the potential adverse effects of the proposed action. Here, informed consent isn’t required because a reasonable person is aware of the nature of the effects of alcohol, when consumed in excess. So we cannot use the argument that the victim was unaware that alcohol was an intoxicant, which is highly unlikely, at best. plus we have the fact that she committed a crime by consuming alcohol while being under 21, and it is again highly unlikely that she wasn’t aware that it was illegal for her to drink alcohol. So the fact remains that she was “informed” about the effects of alcohol, unless this were to be a highly unlikely and unusual situation. There is no allegation that she was in any way forced to drink the alcohol, or administered the alcohol without her knowledge. What we also must consider is that the defendant was in the same state as the victim, having also consumed alcohol, and most probably in an amount comparable to the amount the victim consumed, given the fact that they were at the same party, and absent evidence to the contrary. This would mean that the victim was most likely NOT unconscious, as the state would contend, and thus the victim was still at a point of falling within mens rhea, (i.e. the ability mentally form intent.), and thus able to consent to the act.

        • Nina Lee

          You ignore evidence contrary to your agenda. Evidence indicates that she had “severe alcohol poisoning”, which witnesses indicated made her lacking in consciousness and control of her body. Witnesses and defendant said that he carried her to his car and kept her there before taking her to her grandma’s. Clearly, he exercised control of his body, her body, and his car. So don’t pretend they were equally intoxicated or that her poisoned brain was capable of retrieving memories/information for informed consent when stuck in his car at his disposal. If he had killed or robbed her, would you have pretended that she was capable of putting up a fight and he incapable of manipulating her body? With your evidence-poor model, if you believe the best approach is to charge minors for drinking and let people who take advantage of minors or drunks do whatever they can possibly claim was “mutually consented” to, then I hope you will never be left alone with a minor or an incapacitated person.

      • NDForever

        Informed consent apparently has nothing to do with the law as written. Nice job trying to make a BS point. Poorly drafted statute compounded by a prosecutor who wanted to overcharge. The legistlature can fix what is their created problem and the prosecutor can stop the obnoxious practice of improper charging. They had the kid dead to rights in a lesser charge and got greedy. the victim should blame the prosecutor.

      • Alfred Hussein Neuman

        So the girl “lies” and says she doesn’t remember giving consent, the guy should be throw in jail? Hope that happens to you….just don’t attack the victim.

  • GodwinsLawyer

    guess we need to slip a mickey to a judge or two.

  • GodwinsLawyer

    Conservative American Values on proud display.

    • Kolya2

      But public restrooms and the transgendered.

      • GodwinsLawyer

        you want to drug and assault them, too? you ARE a good conservative.

  • ErnestSmyth
  • deannasser

    Why not just make sex under the influence illegal? (SUI) That way the prosecutor can make sure everyone has consented coldly and rationally. The court was right and the legislature should leave it alone.

    We lose freedom every time some prosecutor loses a case and tightens the law to make up for his/her poor performance. I hate to think that a person’s liberty depends on how well a willing partner remembers “last night” when there is no other indication of non-consent. If the law is going to invade the area of consent, it should give equal dignity to all the other signs that the act was probably non-violent and consenual.

    • Timothy Rigney

      Because people still have rights when they’re drunk; being drunk is not a crime.
      Please get help, your thinking really is somehow “off.” In a dangerous way.
      We lose freedom every time we victim blame.
      By the way, next time you get robbed or assaulted, remember that it was 100% – 100% –
      YOUR fault for being in the wrong place at the wrong time. They should put you in jail for your foolish lapse in judgment. Maybe they will.

      • Alfred Hussein Neuman

        Timothy, you really don’t know if she consented or not. She doesn’t remember. She performed the sex act. There’s absolutely no evidence to even slightly indicate she was forced. Youre a feminist fool. Trying to compare being robbed with someone will willingly performed oral sex is stupid.

        • Nina Lee

          So a child groomed (by a community in which sodomy of an intoxicated minor is fine) to willingly poison himself and perform oral sex is not in any way robbed of anything (e.g. better opportunities, lower risks)? Rational parents would avoid or leave that community if that ruling or norm were allowed to stand.

          You’re an anti-feminist fool for bringing up feminism when Timothy did not.

          • Anon

            She was totally passed out. All witnesses testified to that. I got her at 2AM. I tried everything to wake her for HOURS. She didn’t wake up for 6 hours. She had cuts in her mouth, bruises on her head and there were signs of force but the pictures were not allowed in court because his attorney found a loophole there, too. He WILL do this again. He was laughing at her in school after about a year passed and I guess he assumed he’d gotten away with it. He said, “ha ha”. She had an anxiety attack and went home. A week later, the DNA rape kit test FINALLY came back and he was arrested at school. SHE is a victim. I was at the courthouse and his “best” friend said, “I’m sorry what happened to her”. He was the “other” boy who was dropped off early. She was in the car with the perp for at least an hour by herself. She is as white as snow, natural blonde. He is half black/half white (I’m only telling you this because someone above asked about this, it has no bearing on the case). Both are very attractive kids. Both have been victims of divorced parents. Both went to the same school and were at an “end of school year” party. She left and moved out of state because he showed back up at school after the charges were dropped in November and convinced everyone that she lied. She will never be the same. His “friends” have treated her terribly and her “friends” wanted no part of it because they were afraid to answer any questions for fear of being charged with under aged drinking. So he is now free to do this to YOUR daughters and granddaughters.

    • Wearenotperfect

      I agree with you! And Timothy Rigney is just comparing apples to oranges. Getting robbed while sober is completely different than getting robbed while your drunk and passed out. It’s still doesn’t make it right for the other person to steal from you but if your irresponsible to get drunk, pass out and not remember what you did or said then take responsibility for your actions, Please! That is one of the things that’s killing this country, laws that are passed by our saints in government that overreach because of the stupidity and irresponsibly of some.

  • Elizaabeth

    So….they have his Dna showing sexual activity and that she was too drunk to give consent. He obviously wasn’t too drunk as he drove her home (to make it there shows he was passed out/unconscious). So despite the dna evidence he gets out of rape charge. Then she still supposedly is too drunk to give consent for oral sex but hey the law says no consent needed there….
    They are also underage. You’d think something should have happened to one of both of them legally. She obviously drank underage (blood alcohol of .341??
    I guess the worst part of ALL of this is the other people who have been convicted may get out of jail because of this case which has a lot of controversy may help someone in a case that could have been considered “slam dunk” now victims have to go back through it all..

  • Desi

    Sodomy is a criminal activity in the state of Oklahoma punishable by up to a 10 year sentance. Maybe the prosecutor should charge him with that since it’s the one thing he did admit to!

  • Timothy Rigney

    I think it’s very important that this problem be fixed immediately. In my opinion this is *very,* very dangerous, for several reasons which I think should be obvious.
    Not to mention the horrible injustice of it for the victims.

    • Wearenotperfect

      Your right it can be “*very,*very dangerous” especially for the person who swears they had consent from an individual and later that individual recanted.

      • Nina Lee

        Anyone who swears a drunk gave consent is too idiotic to not be a danger to self or others.

  • Alfred Hussein Neuman

    So a girl performs oral sex, has no memory of doing it and the guy was going to prosecuted for rape? If she no memory, who is to say she didn’t initiate the activity. Who’s to say was asked to blow him and enjoyed. Was the guy drunk too? This is worse than a “he said, she said” which by default goes in the girls favor. This is a “he said, other feminist said”. Prosecuting him for nothing is an abuse of justice.

    • Evan Vernon Giles

      You’re missing the point in law since she was evidently too drunk to give proper consent then it becomes rape.

  • Wilby Stoned

    So it’s okay to walk up to anyone who has passed out for whatever reason and stick your junk in their mouth?
    The idea that she gave consent, when she was incapacitated, is absurd.

  • Sarah A

    Based on the comments I’ve read here, I think it’s important to separate the specific criminal case in question from the court’s much broader interpretation that forcing yourself on an unconscious victim doesn’t count as rape. The latter is clearly ridiculous; the judge is simply splitting hairs because the “forcible sodomy” law doesn’t specifically mention non-consensual sex with someone who’s incapacitated or unconscious, even though the “rape law” does. Obviously “walk[ing] up to anyone who has passed out for whatever reason and stick[ing] your junk in their mouth,” as Wilby Stoned so eloquently put it, should be illegal, and someone who does this should be punished – if it can be proved that they actually did it. And therein lies the rub. In this specific case, you have a situation where the guy claims that the girl consented to oral sex, and the girl can’t remember anything that happened. There’s plenty of circumstantial evidence that he’s lying (in particular, the witnesses’ accounts that she was already semi- or unconscious when she was left alone with this guy, and still unconscious when he dropped her off), but that’s not enough to prove “beyond a reasonable doubt” that she didn’t at some point regain consciousness, give consent, and then pass out again after the act. Yes, it’s unlikely, but the criminal justice system can’t convict people based on a “more likely than not” threshold of evidence (maybe she could try a civil suit? I’m definitely not a lawyer.) So, as far as I can see, the court really didn’t have any choice but to dismiss this particular case due to lack of evidence. But to then turn around and say that forcing yourself on an unconscious victim may or may not be rape depending on which orifice you happen to choose is, to my mind, sheer lunacy.

    • Nina Lee

      It’s possible to sleep walk and perform sex, give money to a robber, or even carry out murder for someone. (Nevermind all the things children “willingly” do when all the force there is someone whose validation they seek showing a personal desire for something from the child.) If you can’t remember what happened because your brain wasn’t fully awake and/or was drugged, and the state has clear evidence of incapitation (prefrontal lobe’s inability to assess & control anybody’s action, incl one’s own body) as well as evidence of someone keeping your incapitated brain in their car, then I don’t see how the court can correctly claim there’s no evidence of some force beyond will or no evidence of lack of meaningful consent. The court was begging the question with an unsound premise that brains without much awareness & judgment can give consent or the premise that force on an incapitated/minor’s brain must be equal to force on a capable adult brain in order to have the same effects and therefore be considered “forcible”.

      Justice for all demands rulings be based on or best fit all available evidence, rather than be based on empty words referring to nothing or best fit a judge’s ignorance, bias, or pity for select defendants put into a dumb penalizing system. The punitive system is another problem that needs to be dealt, rather than swept under the rugs of rulings contorted by misdirected efforts to help defendants.

  • Koby333

    Um, a few days late to the discussion, but here goes…

    Imprisonment, false at that. He held her as a prisoner in his vehicle. Carried there by two other ‘boys’ and left to “his” devices as she drifted in and out of consciousness. Who knows what he said to her while she was held captive in his vehicle. Did he promise her that he would take her to her grandparents’ house? What other false promises did he make? And just because some of you have judged her to be a liar, does not make his testimony truthful. If you can allege her semi- or unconscious state of being as false, does not again, make his statements true… what if he was so drunk that he cannot/could not remember what he had said? That would pretty much make him a liar. So, to all of the young women he is going to try and entice into his vehicle in the future – BEWARE.

    He could have had intentions of either raping her or sodomizing her, he ended up choosing sodomy. So, intent is a big issue. Then there is the matter of intent to misappropriate “chattel” for his own uses. Did he tell her of those intentions? Did he give her those choices as well? He says ‘consensual’, she says “I cannot remember”. Kind of an enormous difference, about the size of the Grand Canyon, wouldn’t you say?

    The story goes that she was taken to her grandparents’ home, why not to the parents? Are we missing something? Is there a tribal element or are we discussing non-Native Whites? What about the size and strength disparities between the two? How big is the guy? Does he play high school sports? Football, maybe? Wrestling, too? What is her size? Petite? Medium build?

    Just a minute more with Native versus non-Natives – genetic predisposition to severe reactions to alcohol consumption makes a huge difference in how the body reacts… Man, where are your heads at? Maybe I don’t really want to know, from the sounds of some of your answers there is a whole element of misogynists out here not willing to examine the responsibility of interacting with another human’s bodily functions. Which tells me that your pre-frontal cortexes are not yet fully developed – sad, too sad.

    Not to worry, you’ll reach maturity one day, probably just in time to have to deal with your own daughter’s misadventures and sexuality. Hopefully, you’ll remember your own disgraceful responses here and try to do better by her.

    To Alfred Hussein Neuman: No memory does not equate with unconsciousness. Nor is there any mention of date-rape drugs, even though it is alleged that he had not ‘raped’ her, the drugs can serve whatever purpose, I am sure you are aware of that. Let’s look at this in another way – if two teenagers are secretly or maybe not so secretly involved in exploring sexual feelings, they have already consented to the possibility of “doing the nasty.”

    However, if the two teenagers would be capable of expressing their love openly, even to the point of performing sexual acts in the open company of their immediate families, then where and why would they have to act surreptitiously about what they were going to do? However, there is already an admission of embarrassment and humiliation – he did not take her to her parents’ house, but to the grandparents, “dropping her off” like so much garbage… This speaks volumes to the “boy’s” lack of maturity, lack of a sense of responsibility, an overt effort to escape confrontation with law enforcement, which he would have had to face immediately, had he acted appropriately at the hospital… get it yet, Neuman?

    Have I missed something? Oh, right, Alfred Hussein Neuman, have you ever been sodomized? Yes or no. Have you ever been abused, physically, emotionally, psychologically or other – ever? Me thinks you need to reassess some of your comments, place yourself in the victim’s shoes, yes, and even as a male… consider your options.

    A child with an underdeveloped brain is not going to have the mental resources available to use in order to make an informed decision – stone cold sober or fully intoxicated.

    You cannot use the laws written as they are for adults, for children. They and their behaviors fall within entirely different arenas, for clarification. In some countries, his parents could be held liable for his transgressions, thus, making it necessary for both him and his parents to attend classes, being monitored for aberrant behaviors and to report any further encounters. Restraining orders come to mind, prohibitive injunctions for proximate distances, ankle monitors to track his patterns of movements, restraints upon his extra-curricular activities, curfews – this kid has not proven himself to be a responsible member of the community.

    To the point, just because a panel of judges fail to acknowledge the damaging results of their judgments does not mean there are not consequences for all involved. Absolutely shameful.

  • nilbud

    Only a moron types “Um”.

    • Koby333

      Well, Moron, I guess that applies to you as well.

  • bloggod

    “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.” Intent is paramount in either instance, but the comparison fails in equating entering property or assaulting an unconscious person.