Julie Rendelman Paul Callan on Legal View 04292016
Legal analysts blame Oklahoma law for sodomy ruling
01:37 - Source: CNN

Editor’s Note: Jennifer Gentile Long is chief executive officer of AEquitas: The Prosecutors’ Resource on Violence Against Women, which receives funding from the Department of Justice to provide technical assistance, training and publications on issues related to sexual violence. The views expressed are her own.

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Oral rape charged was dismissed based on wording of Oklahoma's forcible sodomy law

Jennifer Long: Differences exist among jurisdictions in laws addressing assault of voluntarily intoxicated victims

CNN  — 

A ruling by the Oklahoma Court of Criminal Appeals that the state’s forcible sodomy statute did not apply to the assault of victims too intoxicated to consent has prompted widespread bewilderment and even outrage. Hopefully, it will also spark change that might better help victims of sexual assault.

Perpetrators of sexual assaults will often use alcohol and drugs to facilitate their crimes by openly or surreptitiously intoxicating their victims, or by targeting potential victims who are already too intoxicated by drugs and/or alcohol to consent.

Even where a victim’s intoxication results from alcohol consumption alone, experts have described its effects as devastating, with one noting: “If recreational drugs were tools, alcohol would be a sledgehammer.” Intoxication impacts the victim’s ability to appraise danger, the capacity to communicate lack of consent and the ability to perceive or remember all or parts of the assault. In short, a victim’s intoxication serves as one of an offender’s most effective weapons.

Despite this, many legislatures enact or amend statutes in a piecemeal fashion, sometimes leading to unanticipated results. In the Oklahoma case, for example, the statute specifically pertaining to oral penetration is separate from the one pertaining to anal and vaginal penetration, with the court finding that only the latter statute prohibits sexual conduct with a victim too intoxicated to consent.

But this case also exposes a troubling gap between research demonstrating how frequently predators are able to exploit intoxication to commit acts of sexual violence, and the reality of the implementation of the nation’s criminal laws against sexual violence.

True, all jurisdictions in the United States have statutes that can be used to prosecute the sexual assault of voluntarily intoxicated victims. But the language of these statutes is not uniform. As a result, some assaultive conduct may lie outside of the statute, as appears in the Oklahoma case.

However, there is also a difference among jurisdictions in the laws addressing the assault of voluntarily intoxicated victims – assaults where the victim’s intoxication was a result of his or her own conduct. These laws can fall into one of two categories: 1) those that explicitly reference intoxication, and 2) those that do not explicitly reference intoxication, but instead describe the effects of intoxication.

What exactly does that mean?

Sexual activity with a person who has consumed drugs or alcohol is not, standing alone, a criminal act. Instead, a sexual assault occurs where a victim’s intoxication impairs cognitive or physical functions in such a way as to make the victim unable to communicate unwillingness to engage in sexual activity, unable to appraise the nature of the conduct, or unable to exercise control.

In jurisdictions without laws that specifically cover voluntarily intoxicated victims, courts must rely on statutes that focus on the effects of alcohol. Even in jurisdictions without laws specifically referencing intoxicated victims, there are statutes prohibiting sexual conduct with persons having cognitive and/or physical impairments that describe the intoxicated victim.

Typical statutory language may include phrases such as “incapable of consent,” “incapable of appreciating/appraising/understanding the nature or consequences of one’s conduct,” “unable of controlling one’s conduct,” or “physically helpless” (defined in many jurisdictions to include victims who are “unconscious, unaware, or physically incapable of communication or resistance”).

The problem that the Oklahoma decision highlights is that there is a “gap” in legislation protecting victims who are preyed upon by assailants prepared to exploit their impaired condition with respect to only certain types of criminal penetration. This unfortunate reality appears to have been recognized, with Rep. Scott Biggs promising action to address what he described as “court-created loophole.”

“I think the judges made a grave error, but if they need more clarification, we are happy to give it to them by fixing the statute,” he said.

But Oklahoma is not the end of the story – courts, legislatures, and prosecutors across the country should take a realistic view, based upon what we now know about the effects of alcohol and the prevalence of alcohol- and drug-facilitated sexual violence. In doing so, we might be in a better position to ensure that vulnerable potential and actual victims are protected against all such conduct.

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