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Oklahoma court rules it's legal to "forcibly sodomize" someone if they're unconscious

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BeesEight

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Aug 22, 2011
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So this sounds crazy, let's just get that out of the way.

But from what I'm reading here, it seems that someone is potentiall considered unconcious if they're black-out drunk? Does this mean that if I'm with a woman and we're both black-out drunk, and she decides to give me a blowjob, I'm raping her?

Serious question.

I realise that you shouldn't engage in sexual activity with someone that's incapable of consenting, but what about if you are too?

I'm not saying that's what happened here.

I can only speak for my area's laws and, as you can see here, laws vary depending on where you live.

Where I'm from, however, to get a conviction of sexual assault you would need to demonstrate reasonable intent from the perpetrator in order to get a conviction. Basically, if you accuse someone of rape, there needs to be an indication that the person committing the crime would reasonably understand their actions were criminal. Since someone that is incapacitated is incapable of granting consent, it's reasonable to believe that, even if you're drunk, you would know that she can't consent because she can't do anything.

If neither of you are incapacitated, both of you are drunk and you both expressed amiable intentions towards each other then it's within reason that either a) consent was given during the time either of you were blacked out [which wouldn't count as actual consent since you're both inebriated but would count for intention since... well, you're both inebriated] and/or b) the accused believed consent was given accounting for her inebriated mind.

Basically, the accuser would have a hell of a hard time getting a conviction of sexual assault if both of you were demonstratably drunk at the time of the incident.

Also your example doesn't make much sense since she's the one performing the action so if anything, you'd be the one that was sexually assaulted.
 

Sianos

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Just another example of how arguing by definition without considering context and intended meaning is disingenuous and dangerous.
 

Instro

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So I'm kind of confused about something, and maybe someone can help me out here. If they were both intoxicated, the law expects that he is able to understand that she was too intoxicated, when he himself was potentially too intoxicated? Keeping in mind that she has no memory of anything, and he said she consented. The only other testimony is that she was in and out of consciousness during the ride.
 

BeesEight

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Aug 22, 2011
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So I'm kind of confused about something, and maybe someone can help me out here. If they were both intoxicated, the law expects that he is able to understand that she was too intoxicated, when he himself was potentially too intoxicated? Keeping in mind that she has no memory of anything, and he said she consented. The only other testimony is that she was in and out of consciousness during the ride.

If he was intoxicated, why did he drive her home? There doesn't seem to be a drunk driving charge so, presumably, he was sober enough to operate the car.

She also sounds incapacitated if she had to be carried into the car and a witness in the car claims that she was drifting in and out of consciousness. She's clearly in a state incapable of providing consent to which it seems reasonable that the boy would be aware of this.

If the boy was too intoxicated to realize that the girl isn't even conscious, he should most definitely not be behind the wheel.
 

weekev

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In a word, yes. Criminal law is designed to be specific as to provide notice to society of prohibited acts. Generally, conduct that is not explicitly illegal is not punishable. I'm not an expert on this law, but I lost many cases against clearly morally guilty people who were legally not guilty. Murderers go free all the time under the same logic. In this case it seems very clear that the legislature left a glaring gap that doesn't address a need that we have in society to criminalize abhorrent rapist behavior. If it is true that they did not, then it is the way our system is rightly set up that a morally guilty and corrupt person must go free.

Too bad mob justice isn't a thing anymore however. What a scumbag.
So a judge can't apply common sense? To let a rapist or murderer go free because of the way some other idiot wrote a law in the rulebook is fucking insane. In cases like this common sense should be applied along the lines of "That motherfucker is a motherfucking rapist, have 5 years in jail to see how you like it"
 

Instro

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If he was intoxicated, why did he drive her home? There doesn't seem to be a drunk driving charge so, presumably, he was sober enough to operate the car.

She also sounds incapacitated if she had to be carried into the car and a witness in the car claims that she was drifting in and out of consciousness. She's clearly in a state incapable of providing consent to which it seems reasonable that the boy would be aware of this.

If the boy was too intoxicated to realize that the girl isn't even conscious, he should most definitely not be behind the wheel.

I agree, but they couldn't test his blood alcohol level right? By the time they got to him, whatever was there would have already been gone. Yes she had to be carried to the car, but that doesn't tell us much other than that she was really drunk, which we already know due to the test that was administered. Sort of the same issue with drifting in and out, while that means she was very drunk, that also means that his story is plausible in that she could have been conscious long enough at some point to say yes and do the deed.

I guess it just seems like a harder case to me than some are making out to be. Sure 9 times out of 10 it's open and shut, but I feel that the drinking, the ages, and the lack of any story from the girl herself other than that she doesn't remember anything, makes this one fall into a bit of a grey area for me. I think it would be easier if the other people had said he hadn't been drinking, or if he hadn't been underage, but that's not the case so it's hard to say with 100% certainty that he should have known she was too drunk.
 

Nivash

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Nov 13, 2013
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So I'm kind of confused about something, and maybe someone can help me out here. If they were both intoxicated, the law expects that he is able to understand that she was too intoxicated, when he himself was potentially too intoxicated? Keeping in mind that she has no memory of anything, and he said she consented. The only other testimony is that she was in and out of consciousness during the ride.

Being voluntarily intoxicated is never allowed as an excuse or ameliorating circumstance. He chose to be drunk, she didn't choose to get assaulted. Laws are supposed to protect drunk people from getting victimised but they aren't supposed to protect their attackers. This is done for all types of crimes and intoxication; if it wasn't, you could try to argue in court that you were too drunk to realise that you shouldn't drive if you get charged with a DIU, for instance, which wouldn't make any sense. Unless someone drugs you against your will, you always have a responsibility to remain sober enough to not lose control and judgement.

So a judge can't apply common sense? To let a rapist or murderer go free because of the way some other idiot wrote a law in the rulebook is fucking insane. In cases like this common sense should be applied along the lines of "That motherfucker is a motherfucking rapist, have 5 years in jail to see how you like it"

Common sense isn't common, it's usually just an excuse for snap judgement and bias. Laws are in place specifically to avoid the kind of legal free for all. What you're suggesting is basically judges doing whatever they feel like and basically making up laws as they go along, that would be very dangerous and not a society based on law. The downside is of course that guilty people can and will go free on technicalities, but there''s no way around it. You'll just have to try and amend the law to plug the loophole for next time.

EDIT: IANAL so I'm not sure if that applies in this case, or if the court actually had the authority to legally sentence him and simply chose not to. I'm just responding to the general sentiment in your post.
 

TCKaos

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There's nothing here, Alabama
 

Suikoguy

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The SC is gonna have a fucking field day with this one.

Holy shit.

It's the state Supreme Court, that's it. State issues don't go any further unless they can find a federal issue to appeal on.

So a judge can't apply common sense? To let a rapist or murderer go free because of the way some other idiot wrote a law in the rulebook is fucking insane. In cases like this common sense should be applied along the lines of "That motherfucker is a motherfucking rapist, have 5 years in jail to see how you like it"

The DA said this about the case:

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.
http://oklahomawatch.org/2016/04/23...esnt-apply-to-cases-with-unconscious-victims/
 

Flo_Evans

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Feb 3, 2005
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If she didn't remember anything who went to the police?

edit: oh grandma took her to hospital unconscious.

Jesus.
 

ampere

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Did Oklahoma just de-facto announce that date-rape is legal? Jesus

I guess we need federal law that lays down rules for sexual assault
 

uncelestial

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In a word, yes. Criminal law is designed to be specific as to provide notice to society of prohibited acts. Generally, conduct that is not explicitly illegal is not punishable. I'm not an expert on this law, but I lost many cases against clearly morally guilty people who were legally not guilty. Murderers go free all the time under the same logic. In this case it seems very clear that the legislature left a glaring gap that doesn't address a need that we have in society to criminalize abhorrent rapist behavior. If it is true that they did not, then it is the way our system is rightly set up that a morally guilty and corrupt person must go free.

Too bad mob justice isn't a thing anymore however. What a scumbag.
Same thought crossed my mind reading the court's opinion. But I don't think we should let the court off the hook just because the law wasn't explicit. They seem hung up on an interpretation of that statute that defines "force" as something that requires the victim to participate/fight back (which is precluded by them being unconscious). I can easily imagine a different court deciding that what little agency that person had at that moment was being essentially overruled by the attacker, hence force.

Hence these comments from the assistant DA:

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.
 

Instro

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Being voluntarily intoxicated is never allowed as an excuse or ameliorating circumstance. He chose to be drunk, she didn't choose to get assaulted. Laws are supposed to protect drunk people from getting victimised but they aren't supposed to protect their attackers. This is done for all types of crimes and intoxication; if it wasn't, you could try to argue in court that you were too drunk to realise that you shouldn't drive if you get charged with a DIU, for instance, which wouldn't make any sense. Unless someone drugs you against your will, you always have a responsibility to remain sober enough to not lose control and judgement.

My understanding was that it can be for specific types of crimes, or under certain intent? Maybe that's incorrect? Also, does being underage make any difference in terms of the person knowing what alcohol could do to their inhibitions? Does her lack of memory make a difference, or is it simply cut and dry because she was too intoxicated to remember? Normally there is more evidence from the victims side, or from other people(i.e. she remembers saying no, or he implied before hand that he was planning something, or people saw him acting shady, etc.), but we don't have that here. Wouldn't that be a factor as well?
 

hateradio

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How unconscious does a person have to get to be considered unconscious.

The whole thing is a mess. You can't force someone because they're not being forced because they're unconscious and therefore aren't saying no?
 

Greddleok

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Benjamin Fu, the Tulsa County district attorney leading the case, said the ruling had him “completely gobsmacked”

Sounds like he wasn't the only one who was smacked in the gob.
 

NimbusD

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So basically it's ok to stick your dick in or on anyone in okloahoma right now if the person is unconscious. Yeah, that sounds right.

Fucking ridiculous. The assumption is that a person's (really, a woman's) body is by default not private and their own. They must actively resist in order to assert their self dignity.
 

NimbusD

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So I'm kind of confused about something, and maybe someone can help me out here. If they were both intoxicated, the law expects that he is able to understand that she was too intoxicated, when he himself was potentially too intoxicated? Keeping in mind that she has no memory of anything, and he said she consented. The only other testimony is that she was in and out of consciousness during the ride.

Does it matter what you understand when you're drunk? Being drunk doesn't protect you from any other crime by virtue of being drunk.

There is however no instance where you're too drunk to have someone do something fucked up to you and have it be fine. I mean, unless you're fucking Oklahoma, then I guess that's not true.
 
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I don't know how laws work in the USA, but this is going to get overturned by some supreme court or something, right? Because a decision this dumb and illogical can't be allowed to stand.
 

TheRedSnifit

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Same thought crossed my mind reading the court's opinion. But I don't think we should let the court off the hook just because the law wasn't explicit. They seem hung up on an interpretation of that statute that defines "force" as something that requires the victim to participate/fight back (which is precluded by them being unconscious). I can easily imagine a different court deciding that what little agency that person had at that moment was being essentially overruled by the attacker, hence force.

Hence these comments from the assistant DA:

It was established years ago in the state that "force" does not include intoxicated victims, hence why they have a specific statute for intoxicated victims.

I don't know how laws work in the USA, but this is going to get overturned by some supreme court or something, right? Because a decision this dumb and illogical can't be allowed to stand.

This ruling was handed down by the state supreme court. It can't to to SCOTUS because it's a state law.
 

Of All Trades

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Same thought crossed my mind reading the court's opinion. But I don't think we should let the court off the hook just because the law wasn't explicit. They seem hung up on an interpretation of that statute that defines "force" as something that requires the victim to participate/fight back (which is precluded by them being unconscious). I can easily imagine a different court deciding that what little agency that person had at that moment was being essentially overruled by the attacker, hence force.

Hence these comments from the assistant DA:
If the law wasn't explicit then they could probably do that, the argument put forward (in the article as I read it) is that the law is explicit enough that things not included aren't necessarily intended by the legislature. The assistant DA makes a poor point: if the breaking and entering law specifically listed a bunch of doors aND windows and in all the variants they were locked then the law would lean towards an unlocked door not being b&e because b&e has been defined differently for some reason, possibly because unlocked doors are a different crime.

From other reading it's also why a rape charge wasn't pursued: rape in OK is defined as vaginal or anal (and is written to include drunk rape).
 

greatgeek

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Sep 17, 2013
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I don't know how laws work in the USA, but this is going to get overturned by some supreme court or something, right? Because a decision this dumb and illogical can't be allowed to stand.
This case involved a state law question, and the decision was handed down by a court of last of resort in OK. So, no, this issue is decided unless the OK court decides to overturn itself or the legislature fixes its sex crime law.
 

phisheep

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The logic being if they're unconscious then no force could have been needed to rape them. It's like the most literal interpretation of what constitutes forcible sodomy. Rape case dismissed as a result.

(a) that's not the logic that was used, (b) it wasn't rape in any case because in OK rape requires vaginal or anal penetration, (c) it's not at all the most literal interpretation of what constitutes forcible sodomy - because historically sodomy requires anal penetration and it is not clear that there was evidence of force (d) it was the sodomy case, not the rape case that was so dismissed.

So, a bit more complicated than it comes out in the reporting.

In a word, yes. Criminal law is designed to be specific as to provide notice to society of prohibited acts. Generally, conduct that is not explicitly illegal is not punishable. I'm not an expert on this law, but I lost many cases against clearly morally guilty people who were legally not guilty. Murderers go free all the time under the same logic. In this case it seems very clear that the legislature left a glaring gap that doesn't address a need that we have in society to criminalize abhorrent rapist behavior. If it is true that they did not, then it is the way our system is rightly set up that a morally guilty and corrupt person must go free.

Spot on.

So a judge can't apply common sense? To let a rapist or murderer go free because of the way some other idiot wrote a law in the rulebook is fucking insane. In cases like this common sense should be applied along the lines of "That motherfucker is a motherfucking rapist, have 5 years in jail to see how you like it"

No, a judge can't. Or at least, a criminal judge can't (civil judges do this all the time though). If they could then, for example, Driving While Black might be an actual law rather than just a thing.

To dig a bit deeper:

First, it is not entirely true that judges can't apply common sense to interpreting the law. For example in this very case the charge was forcible sodomy, for which the definition is:

OK 21-886 said:
the detestable and abominable crime against nature, committed with mankind or with a beast

Somewhat archaic language, but the natural and historical interpretation is that this means anal penetration. So at some time in the past this must have been extended to include oral penetration, and this must have been done by a court, as it is not in the statute.

However, the definitions of incapacity differ between rape and forcible sodomy. Here's the rape one:

OK 21-1111(2) said:
Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

... and here's what it says under forcible sodomy ...

OK 21-888 said:
Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime

The difference is the "whether temporary or permanent" which appears under rape but not under sodomy. Now, it is a usual thing for courts to do to look at other parts of the statute to assist in interpretation - but this appeal seems to have been particularly pernickety in claiming (not in so many words, but that seems to be what happened) in saying that temporary inability to consent through drunkenness would not apply to sodomy.

I think that would have a good chance of being overturned on appeal to the OK Supreme Court.

And now we come to the games-playing bit. It is not at all unusual for intermediate appeal courts to give apparently perverse verdicts (there are plenty of instances in the UK and I guess the same happens elsewhere) for reasons that may not be readily apparent. I'm not sure that this happened here, but it has that smell about it so I'll lay out the logic.

Thing is, is there's a substantial change to interpretation of the law you want that change made by the highest possible court to set a precedent for the future. So it needs to appealed all the way up.

But appeals only happen if (a) there are grounds to appeal and (b) whoever is doing the appealing has the resources to pursue the appeal.

Typically in a criminal case that means you want the prosecution to do the appealing, because they have the resources to do so. So the intermediate court will play cautious in favour of the defendant and pass the burden to the higher court.

Then the higher court settles the law, but not retrospectively.

If this is what is happening here, then this defendant will stay acquitted (because superior courts are reluctant to interfere with courts of first instance unless the case is particularly clear cut) but the interpretation of the law will change for the future.

That would be a good result all round I think, but it's not even a story until we get the OK Supreme Court verdict.

EDIT:

This case involved a state law question, and the decision was handed down by a court of last of resort in OK. So, no, this issue is decided unless the OK court decides to overturn itself or the legislature fixes its sex crime law.

Ah. I'm not familiar with the OK court structure. If you are right then my above analysis is wrong and it will be down to the legislature.
 

YN12

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I remember something similar happened in Italy, like the court decided it could not have been rape because the victim was wearing tight jeans and those cannot be removed without the consent of the person wearing them.

Moral of the story: rape victims, make sure you get punched in the face as well as raped, because otherwise they may not belive it happend! What a world we are living in...
 

greatgeek

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Ah. I'm not familiar with the OK court structure. If you are right then my above analysis is wrong and it will be down to the legislature.
Like some other states, OK has two courts of last resort: a Court of Criminal Appeals that has jurisdiction over criminal cases (which rendered this decision), and a Supreme Court that has jurisdiction over civil cases.
 

phisheep

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Like some other states, OK has two courts of last resort: a Court of Criminal Appeals that has jurisdiction over criminal cases, and a Supreme Court that has jurisdictiom over civil cases.

Thanks,k I was wrong. I'll leave my analysis up though, as it's the sort of thing that happens in other cases in other places and it might be of interest.
 

ClosingADoor

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What the fuck... Is this just a technicality and are they going to use another law to go after the guy, or is it really legal to rape someone if you just get them drunk enough?
 

Frodo

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I say, we should go on a binge drinking with whoever ruled this






I can't believe that is NOT a The Onion article.
 
May 18, 2007
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They should rename the state to "Klhm" because i wouldn't open my mouth there any more in case someone fills it with dicks.

Oklahoma - The Teabagging State?
 
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