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