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an offense, enlarge a statute beyond the fair meaning of its language,” the appeals court wrote in what is called an “unpublished opinion,” meaning it cannot be cited as a precedent.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, the court’s interpretation is “insane,” “dangerous” and “offensive.”
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.
Regarding the ruling that “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Because the case was unpublished, it does not set a hard legal precedent, Fu said.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.”
The case in question involves two high school students whose names are withheld because they were both minors at the time of the incident, 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.
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”