This isn’t an argument about rape

So, bird passes out, booze, bloke has oral sex, is this rape or not?

No:

But the trial judge dismissed the case. And the appeals court ruling, on 24 March, affirmed that prosecutors could not apply the law to a victim who was incapacitated by alcohol.

“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 decision read.

Cue outrage. Except that’s not quite it. This is:

Its reasoning, the court said, was that the statute listed several circumstances that constitute force, and yet was silent on incapacitation due to the victim drinking alcohol. “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 law says x, y, z. And as this isn’t x or y or z then it’s not covered. Seems about right to me to be honest.

Michelle Anderson, the dean of the CUNY School of Law who has written extensively about rape law, called the ruling “appropriate” but the law “archaic”.

“This is a call for the legislature to change the statute, which is entirely out of step with what other states have done in this area and what Oklahoma should do,” she said. “It creates a huge loophole for sexual abuse that makes no sense.”

Quite so, quite so.

The outcome is clearly ridiculous but then the law is an ass. The answer is to change the law, not ignore it or misconstrue it. Because for something to be a crime it actually has to be a crime.

24 thoughts on “This isn’t an argument about rape”

  1. Yet the Guardian is happy it isn’t rape if the victim is a sober young girl and the rapist a famous film director.

  2. “The ruling sparked outrage among critics who argue the judicial system engaged in victim-blaming and upholding outdated notions about rape and sexual assault”

    Ah: “outdated notions” in this sense being “not the definition we would like to see applied”. Funny how the left has come to see courts of law not as being technical bodies that are concerned with accuracy and clarity but as being an echo chamber for “the voice of society”, in so far as such a voice is defined by the guardians columnists and op ed writers.

  3. And yet, to reiterate one premise of Tim’s, there is indeed a clear and obvious requirement for the law to be changed. If consent cannot reasonably be assumed then by any lay definition a rape has occurred.

  4. If consent cannot reasonably be assumed then by any lay definition a rape has occurred.

    Not so, I think when most ordinary, lay people hear the word ‘rape’ the image that first comes to mind is a bloke with a knife hiding in the bushes, not a tipsy encounter when legal ‘consent’ may or may not have been given. I’m not arguing whether this is politically correct or not, just that it is the case.

  5. @Ironman not sure what your point is. No one here is arguing that the woman wasn’t abused, from a lay perspective. Just that the law should be applied as written, and newspapers should be a lot more careful/less manipulative when using labels which also have a legal meaning.

    The statute explicitly defines force, but doesn’t include intoxication. That may be a horrible oversight, or a pragmatic decision to acknowledge the difficulty in establishing drunk-but-how-drunk as part of evidence. But by law, there was no rape, no victim in this case. It is critical to make that very clear, specifically so that lay people know to petition to have the law changed, rather than having their two minute hate on how crap the courts are.

  6. Is there any actual evidence she was unconscious at the time? She says she has no memory, but that might be the ‘I don’t want to admit to my parents (and the world) I gave a random lad a BJ while off my tits on alcohol’ effect. Is the court assuming she was unconscious? What would have been the legal implications had she voluntarily given him a BJ while severely drunk? Is that still ‘rape’?

  7. This isn’t anywhere near as bad as the case when some bird gave a guy a BJ when he was passed out, and later claimed that *he* had raped *her*. It’s one of the famous Title IX travesties.

  8. Jim, she was seen to be unconscious before and after the guy was alone with her. No, it’s not conclusive.

  9. @ Chris Miller

    This wasn’t a ‘tipsy encounter’, it was someone sexually assaulting a woman who was unconscious. The lay person may not tow the SJW line about drunken errors of judgement, but in this particular case I think it’s safe to say that most lay folk would support a swift meeting of this guys balls and a pair of housebricks.

    Oh, and DocBud, it what dictionary is it a requirement that a crime is commit before someone can be a victim?

  10. The Thought Gang,

    Context is everything, when an article concerns a trial, it is reasonable to assume that the word victim is used in the sense of a victim of a crime rather than of and accident or circumstance.

  11. “What would have been the legal implications had she voluntarily given him a BJ while severely drunk? Is that still ‘rape’?”

    That’s the great big ‘problematic’ grey area in the modern attempt to change what is viewed as rape.

    Because, technically, yes. If the victim is too drunk to consent then there is no consent. So far, I think only women can be too drunk to consent.

    It’s very much desirable that people start from the presumption that there is no consent, and only get jiggly when satisfied that consent has been given. That’s better than a world where ‘she never said no’ is a defence or ‘she seemed pretty up for it (after a bottle of archers)’.

    But, the way the SJW’s would have it, guys who take all the care they can, and who are just as intoxicated as their partner, and are actually having sex with someone they are in a relationship with, and whom they frequently have drunk-sex with, are still rapists if the woman believes there was no consent.

    Obviously saying this makes me a rape apologist.. and not just someone who’d hate to see himself or his friends destroyed by a law that thinks one party to a joint mistake bears strict and devastating liability for it.

    But seriously.. if she’s drunk then you’d better be damn sure. I have no problem with that being the case. But it should apply both ways.

  12. The Oklahoma law on forcible sodomy defines it in several ways, including:

    Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent

    I would have thought being so drunk as to be unconscious would meet that definition.

    That said, their definition of rape clearly covers the specific circumstance of the victim being unconscious so it looks like an oversight by the lawmakers.

  13. There’s a bit more to this case. The Appeals Court ruling says “The Legislature’s inclusion of an intoxication circumstance for the crime of Rape, 22 O.S. § 1111(A)(4), is not found in the five very specific requirements for commission of the crime of Forcible Sodomy, 22 O.S. § 888(B)”

    The Oklahoma State Rape law defines rape as “an act of sexual intercourse involving vaginal or anal penetration” under various circumstances including “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”, as referred to by the Appeals Court.

    Oral penetration is not explicitly referred to, but is covered by the law against “forcible sodomy”, described as “the detestable and abominable crime against nature”. That law says nothing about intoxication.

    My point is that the rape law doesn’t cover intoxication in general, only intoxication intentionally induced as a means of compelling sexual compliance.

    The implication seems to be that if anyone, even a commentator here, were to drink themself unconscious in Oklahoma, and wake up some time later to find they’d been on the receiving end of anal intercourse, that would not in law be rape.

  14. So Much For Subtlety

    Forcible sodomy should require force? Perish the thought.

    The law as writ should be enforced. But this is a case where the law is calling out for some rewriting.

    Although as someone else has said, it is nothing on the poor student who was drunk and unconscious when a girl gave him a blow job and *he* was charged with rape.

  15. But, the way the SJW’s would have it, guys who take all the care they can, and who are just as intoxicated as their partner, and are actually having sex with someone they are in a relationship with, and whom they frequently have drunk-sex with, are still rapists if the woman believes there was no consent.

    In this evolving SJCF nightmare, are we slowly getting to the point where, after written consent has been provided on both sides (with witnesses present), both parties should then also take breathalyser tests? Just for the avoidance of any subsequent doubt?

  16. SJW said:

    I think “unconscious of the nature of the act” in the Rape law covers innocence rather than sleep. Note that the Appeal Court ruling refers to 1111(A)(4) not 1111(A)(5).

    I see. Thanks.

  17. As was perfectly obvious, my comment bore on Ironman’s attempt to define ‘rape’ and contrast that with the typical lay person’s view of what is meant by the word, and had no bearing on this particular case. I’ve no idea whether consent was given or possible and neither (of course) has anyone else posting here.

  18. “In this evolving SJCF nightmare, are we slowly getting to the point where, after written consent has been provided on both sides (with witnesses present), both parties should then also take breathalyser tests? Just for the avoidance of any subsequent doubt?”

    Wouldn’t make any difference. A man could have a woman’s consent to have sex with him witnessed by the Supreme Court, with medical records to prove total sobriety, and it would mean nothing if after they had sex she decided she had withdrawn consent at the point of penetration and he had continued.

    There is no legal document of consent prior to sex that cannot be withdrawn on a whim by the woman (retrospectively if she feels like it). The only protection a man has would be having a third party independent witness present or filming the entire encounter with repeated verbal affirmations of consent sought and received and recorded.

    In fact I suspect routine covert filming of sexual encounters will become a ‘thing’ in the future, particularly among the young, and the sexually promiscuous as men seek to protect themselves from increasingly child-like females, who are taught they have zero responsibility for anything in life, and men bear all the responsibility for everything. Rather in the way more people have dash-cams to protect themselves from liars and criminals on the roads, the bed-cam will soon become a part of many people’s lives.

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