Tests would later confirm that the young mans DNA was found on the back of her leg and around her mouth. The boy claimed to investigators that the girl had consented to performing oral sex. The girl said she didnt have any memories after leaving the park. Tulsa County prosecutors charged the young man with forcible oral sodomy.
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. 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.
Benjamin Fu, the Tulsa County district attorney leading the case, said the ruling had him completely gobsmacked.
The plain meaning of forcible oral sodomy, of using force, includes taking advantage of a victim who was too intoxicated to consent, Fu said. I dont believe that anybody, until that day, believed that the state of the law was that this kind of conduct was ambiguous, much less legal. And I dont think the law was a loophole until the court decided it was. To focus on why the victim was unable to consent, he continued, puts the victim at fault.
