San Diego Criminal Lawyers Blog
In a ruling that even other lawyers, prosecutors, the nation, and judges are calling completely “absurd,” a conservative Oklahoma court has ruled that rape cannot happen if the victim is unconscious. A court rejected the prosecution of a teenage boy in Tulsa because his 16-year-old accuser had been intoxicated to the point of unconsciousness. In its ruling, the Court of Criminal Appeals stated Forcible Sodomy cannot occur when a victim is so intoxicated as to be completely unconscious at the time of the sexual act. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language,” Judge Hudson said.
Specifically, Oklahoma’s rape law does not mention unconsciousness or intoxication as an element of the crime. Back in 2014, a group of high school students gathered in a Tulsa park to drink and smoke marijuana. Witnesses said the girl had been drifting in and out of unconsciousness and had been unable to walk. The defendant took the girl to his car, and he was then accused of forcing her to perform oral sex. The boy said the ensuing oral sex was consensual, but the victim told the police she did not remember anything else after being at the park. The defendant was initially charged with first-degree rape and forcible oral sodomy, but both charges were dismissed at trial.
Forced Oral Sex is Rape in California
In California, we specifically have a statute that addresses forced oral copulation. See CA Penal Code § 288. You commit the crime of forced oral sex if:
- You committed an act of oral copulation with someone;
- S/he did not consent to the act; and
- You accomplished the act by force, violence, duress, menace, fear or intimidation.
California’s Rape Law, Penal Code 261, defines consent as the inability to act freely and voluntarily and to understand the nature of one’s act. This includes intoxication or unconsciousness. If you are found guilty of forced oral rape, you will be charged with a felony punishable by up to eight years imprisonment and a $10,000 fine. The minimum sentence if the victim is under 18 is a six-year prison sentence. You will also be required to register as a sex offender.
San Diego Rape Defense and Criminal Defense Attorney
The Law Offices of David M. Boertje handle all misdemeanor and felony criminal cases, including those of sexual assault, sex crimes, and forced sodomy. Being accused of a sexual assault crime is a big deal, especially in California. A simple mistake or miscommunication with who you thought was a consenting adult could severely limit your future as well as your freedom. If you have been accused of sexual assault, contact attorney David Boertje today for a free consultation.