Oklahoma oral sex ruling creates a disturbing loophole for sexual assault

Too often, survivors of sexual assault are forced to justify why their rape was actually a rape. While perpetrators are innocent until proven guilty, victims are treated with suspicion – forced to explain away their decisions over clothing, walking alone and drinking. Victim-blaming is nothing new, but in theory, at least, survivors of assault who were too intoxicated to consent to sex are protected by law. That is, unless the victim was subjected to forced oral sex.

This week, it was revealed that a court in the state of Oklahoma, in March, ruled that a 16-year-old girl who was allegedly assaulted with forced oral sex while unconscious was not raped as she had been drinking. "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. Tulsa County District Court dismissed charges against a 17-year-old boy, first of rape, and later of forced "oral sodomy" - after finding that intoxication and unconsciousness were not included in the definition of sodomy.

The case clearly highlights the issue of consent. It promotes the myth that when alcohol is involved, whether a woman or girl says yes or no is a grey area. To say the least, it is troubling that laws still exist in 2016 which place the emphasis so firmly on the victim, rather than the attacker. Consent is never a grey area, nor is it complicated. If you are unconscious, you cannot consent to any form of sexual activity – whether penetrative sex or oral.

Discrepancies

Legal experts have drawn attention to other potential loopholes in the law regarding oral sex. Under Oklahoma law, the crime of forcible sodomy includes: "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." There are discrepancies as to whether "unsoundness of mind" includes intoxication.

Jennifer Gentile Long, chief executive office of the group AEquitas, which provides guidance for prosecutors in sexual and domestic violence cases, told IBTimes UK: "On its plain reading, considering review of other jurisdictions where voluntarily intoxicated victims have fallen under other incapacitations – for me, reading that would have covered an intoxicated victim."

"I would say that it is confusing, because of what we know about alcohol is its significant impact on the mental capacity to understand the nature of an act, to impair judgement and to communicate," Long added.

Modernising laws

The case also emphasises the need to ensure laws regarding sexual assault are modernised. While Oklahoma legislation protects intoxicated victims who are unable to consent to vaginal or anal intercourse, this case shows the problem with archaic rape laws that create a potential loophole for sexual assault. This is particularly important considering oral sex is so common among adolescents, who are already under pressure to be sexually active.

Historically, cunnilingus or fellatio were seen among heterosexual couples are being more intimate than penetrative sex – and therefore reserved for those who were married. Statistics show this is no longer the case. According to research published in 2012 by the National Centre for Health Statistics, a division of the Centers for Disease Control and Prevention, two-thirds of all youths between the ages of 15 and 24 have had experience with oral sex. In the youngest category of ages 15 to 19, 41% of females and 47% of males had received oral sex. Commonly seen by adolescents as less meaningful than intercourse, oral sex has been normalised – and is often a precursor to the "real deal".

This, of course, is not an issue. However problems do arise when oral sex is normalised but misunderstood. Previous research suggests that teenagers are increasingly engaging in oral sex because they believe it to be less risky, in part, because oral sex is pretty much ignored by educators and parents when it comes to having "the talk". Thus, under the pretence that oral sex is the safe option, risks are taken that put teenagers at risk from a smorgasbord of STIs that can be passed on via mouth-to-genital contact.

Better sex education

Better sex education is vital when it comes to oral sex, not just for sexual health, but to fully understand that consent for cunnilingus or fellatio works in the same way as intercourse. When it comes to oral, there is still some confusion as to what constitutes consent and what rape is – particularly when alcohol is involved.

When the BBC asked 24 teenagers what they thought of a scenario which involved a teenage girl not moving when a boy puts his penis in her mouth, the results were telling. There was no clear consent, and therefore no consent. "It was a horrible case of miscommunication," one boy says in response. "It can be classified as rape, but it's not... as bad... as some other cases, for example – this was only oral sex, not penetration," adds another.

Whether oral sex or penetration, unwanted sexual contact is assault. But when adolescents are under pressure to have sex, and oral provides an outlet deemed less significant than intercourse, there is even more potential for coercive pressure. Without better education surrounding consent and oral sex, it can be used as a levy among those who aren't yet ready to have penetrative sex.

There is a complicated tangle of pressure, obligation for girls to give out and judgement levelled at those who don't want to. If a blow job is not as big of a deal as penetrative sex, adolescents girls may be under even more pressure to comply. And if consent regarding oral sex is seen as a grey area – or if oral sex is not protected with the same laws as penetrative sex – there is the potential for assault.