No doubt, the title of today's entry caught your attention. The subject is a serious one, the act itself far worse. What I want to address today is a recent news story that is, at the very least, terrifying.
The Oklahoma Court of Criminal Appeals ruled on a 2014 decision from a lower court regarding a case against a seventeen-year-old boy. He had been charged with the rape of a sixteen-year-old girl who became unconscious after drinking too much at a party. The charged youth drove the girl to her grandmother's house from the party, and witnesses at the party where she and the boy had been drinking testified that she had to be carried to his car. The girl was taken to a nearby hospital afterward, where it was determined that her blood-alcohol level was more than four times the legal limit.
One of the examinations done at the hospital was for sexual assault, which resulted in the boy's DNA being discovered on the back of the girl's leg and around her mouth. The boy claimed the girl consented to oral sex; the girl said she remembered nothing after leaving the party. A lower court threw out the case, and the state's Court of Appeals ruled on March 24th that the lower court was correct in its decision because the forcible sodomy law on the books was inapplicable to the case.
Why? Because the girl was unconscious. Yes, you read that right ... the law was inapplicable because the girl was unable (in this case, by means of intoxication) to give her consent.
Part of the Court of Appeals ruling stated:
"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 Court of Appeals stated the law's wording as the reason for its decision. The law states several situations where applied force is defined and therefore fall under the law's purview. Being intoxicated is not listed as one of those situations.
For clarification, "sodomy" apparently includes oral sex in legal terms. I had always thought it was strictly related to anal sex, but it appears to include both when dealing with legality. I am unsure if that is true in all fifty states, but that seems to be the case at least here. In this case, the boy had been charged with both first-degree rape and forcible oral sodomy.
So, let me get this straight, if someone is given a drug, physically knocked out, or physically restrained to the point where he or she cannot give consent, that is rape ... BUT if that same person is so intoxicated as to be unconscious, oral sex is just fine? I thought consent is consent, period. The lack of it is rape. As a scorecard, I would list it as:
Consent = consent
Stated non-consent = non-consent
Inability to respond = non-consent
Oklahoma's scorecard is clearly different than mine.
State Representative Scott Biggs has already amended a bill he introduced in the State legislature to serve as a fix to what he calls a "court-created loophole". While Rep. Biggs was correct when he stated that "legal minds often get stuck on question of semantics, when it is clear to most of us what the intent of the law is", some bigger issues also come into question.
First, how many other states have this kind of legalese parsing, or even flat-out omissions, in their laws regarding rape? Is Oklahoma's rape law a unique situation unto itself, or does that wording exist anywhere else in the union? Didn't we go through this with former President Bill Clinton's Monica Lewinski scandal? "I did not have sexual relations" as a means to say that oral sex is not sex. Ten to fifteen years ago, kids in grade schools and high schools were saying the same thing. (Maybe they still are.)
Second, rape is rape, regardless if it's vaginal, anal, or oral. The laws of this country, from state to state, should be in sync on this matter. There should be no tolerance for any differences on this matter, including omission of wording, as with Oklahoma's law's exclusion of unconsciousness from intoxication. While Rep. Biggs is on point about the intent of the law, why was unconsciousness from intoxication not included in the law's wording in the first place?
Third, to the point of the omission in Oklahoma's law, there is the question of the treatment of women. As stated in Oklahoma's law, if you get someone drunk enough that they pass out, oral sex is legal. This comes down to a lack of conformity on the idea of rape is rape as well as women's legal status. (Yes, this can negatively affect men who are raped, too.)
Just like how the U.S. Supreme Court's 1973 ruling on abortion in Roe v. Wade has been attacked legally over the years (including recent state-by-state attacks on Planned Parenthood) ... just like its ruling last year on same-sex marriage is being attacked legally (and also in terms of equal rights for all LGBT persons in general) ... what does the Oklahoma case say about us as a society, in terms of legality, about women?
To take this a step further, the idea of rape itself is such a taboo subject that victims are, many times, re-victimized after reporting a rape. This enforces the idea that rape victims should just shut up and move on, which, in turn, enforces the idea of silence as acceptance (consent). Rapes that are reported are often seen as "always" or "mostly" fabricated stories or solely the female's fault. What happened to the then-sixteen-year-old girl in Oklahoma is just one example of this kind of negligence, ignorance, and turning a blind eye. It is our duty to recognize rape for what it is, legally, socially, institutionally, etc.
It is also important keep in mind comments such as West Virginia Representative Brian Kurcaba's stating that having a child from rape can be "beautiful"; and former Missouri Representative Todd Akin's comment about what constitutes a "legitimate" rape: "the female body has ways to shut that whole thing down", citing pregnancies from rape are rare. Therefore, Mr. Akin, I guess a pregnancy from a rape makes the rape, what, illegitimate??? So, no pregnancy from a rape implies the rapist's inculpability, but a pregnancy from a rape is cause to move forward with prosecution??? Sounds like a Salem Witch Trial type of litmus test to me.
Also, take note that the comments above were made by men.
Just like trying to suggest that oral sex is not really sex, this is a chipping away at the very definition, at least legally, of what constitutes rape. If a woman cannot give consent and oral sex is okay in one state in the union, that sets up a precedent for other states to follow suit. Once that first crack in the wall takes place, more cracks can come along. Just like trying to overturn Roe v. Wade or fighting on varying levels against equal rights for gay persons, this is no different. Legalese, parsing words, chipping, chipping, chipping away . . .
Rape is rape.
Terry
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