In a decision that “completely gobsmacked” the Tulsa County district attorney (and will gobsmack you), Oklahoma’s criminal appeals court recently ruled—unanimously—that state law does not criminalize oral sex with a victim who is completely unconscious.

Molly Redden recounts the story in The Guardian:

 A 16-year-old girl gets so intoxicated, while drinking with friends in a Tulsa park, that she has to be carried into the car of the 17-year-old boy who volunteered to take her home. Another boy who rode briefly in the car recalls her coming in and out of consciousness. The girl is still unconscious when she gets to her grandmother’s house; she is taken unconscious to the hospital. She awakens while she is being examined for sexual assault.

Tests found the 17-year-old’s DNA in the girl’s mouth and on the back of her leg.  “The boy claimed to investigators that the girl had consented to performing oral sex,” Redden reports. “The girl said she didn’t 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,” the Guardian article continues. “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.’” (A separate rape law protects victims who are too intoxicated to consent to vaginal or anal rape.)

Though the court’s decision shocks the conscience, Redden quotes several legal experts who do not fault the court for its finding, because they followed the law. “Michelle Anderson, the dean of the CUNY School of Law who has written extensively about rape law, called the ruling ‘appropriate’ but the law ‘archaic . . . . It creates a huge loophole for sexual abuse that makes no sense.’”

READ MORE at The Guardian.