A Frightening Return to Blaming the Rape Victim in OK Legal Decision

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April 29, 2016; CNN and Oklahoma Watch

A 17-year-old boy in Oklahoma remains free from forcible sodomy charges following an appellate ruling that is creating a national uproar. The news has state officials on a fast track to fill a loophole brought to light as a result of the case.

It all began when a group of teenagers were drinking together in a Tulsa park in 2014 and the victim’s alcohol intake led to levels four times the legal limit. Others at the party reported her unable to walk, frequently falling down. The defendant offered to drive her home. The original charge included an accusation of rape, but was dropped with lack of evidence. These details were all reported through Oklahoma Watch, a nonprofit journalism website that has closely followed the story.

The charges against the 17-year-old were ultimately dismissed because in Oklahoma, while the state does address intoxication in a rape case, state law does not mention intoxication or unconsciousness among the five criteria describing a forcible sodomy. By not listing intoxication or unconsciousness, the girl’s decision to drink that night was in essence open for judgment and influenced the trial.

Fueling what had originally sparked a fire with the first ruling, the Oklahoma Court of Criminal Appeals ruled in favor of the lower court on March 24th. This most recent ruling made it clear that there was a hole in the law: In a rape case, the victim’s state is protected, but in a forcible sodomy case, the fact that she was intoxicated had weight on the final ruling.

“[The judges] should not be focused on the actions of the victim,” Benjamin Fu, director of the Special Victims Unit for the Tulsa County DA, told CNN. When the focus shifts to the intoxication of the victim, this sends a message that the crime is actually okay to conduct under some circumstances. The criminal act is taken from the spotlight, which is then shifted to acts that are not on trial.

Fu told CNN it would be absurd to think this is what was meant when the law was written. “We know that this is not the intent of the law.” He later told Fox that he doesn’t believe “for a moment” that “if she suffered from a seizure or low blood [sugar] or some other condition that caused her to become unconscious” and the same act happened, that anyone would react the same.

A former prosecutor and current Oklahoma representative, Scott Biggs, is stepping up to change the current language. He said he was “horrified by the idea that [Oklahoma] would allow rapists to face a lower charge simply because the victim is unconscious” and thought “the judges…lost sight of the big picture.” He reported on his Facebook page that he will have the “loophole fixed” the first week in May.

Had the defendant been found guilty, the forcible sodomy charge could have resulted in the 17-year-old facing time once he turned 19, “when he was no longer eligible for youthful offender status.”

“All this does is add to the fire,” Fu said. “[Sexual assault victims’] biggest fear is that people they tell the story to won’t understand, or will judge them for their behavior. The court’s interpretation was insane, dangerous and offensive.”—Michelle Lemming