An Oklahoma Appellate court is facing heavy criticism for its decision to uphold the dismissal of a “sodomy” prosecution. For example, see the articles in Salon and Mother Jones. The victim in the case was so intoxicated that she had be carried to the defendant’s car for a ride home. While in the car and in and out of consciousness she performed oral sex on the defendant. Her blood alcohol content was later tested at four times the legal limit and she had no memory of the event.
It turns out that Oklahoma has an extremely antiquated set of statutes regarding rape. “Rape” is defined strictly as involving intercourse and does not include oral sex. Forcible oral sex, on the other hand, is prohibited by a different “sodomy” statute. The catch is that, while the rape statute includes a specific provision making clear that sex is rape when the victim is too intoxicated to consent, the sodomy statute includes no such provision. Therefore, the appellate court felt it had no choice but to dismiss the charge since the act committed by the defendant, at least how it was charged by the prosecutor, was not prohibited by the statute in question. As the Court said, “we will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”
Of course, this ruling is understandably upsetting to many people who care about the rights of victims. And there is no doubt the legislature should fix this gap in the statutes. But it’s worth pointing out some fundamental principals of law that this case illustrates. Criminal law requires that a statute be specifically defined in order for a person to be prosecuted under it. This is important because citizens must have notice of the law before they can be accused of violating it. This rule protects us from police officers and prosecutors abusing their discretion and overcharging citizens for offenses that they deem immoral but are not specifically illegal. It also gives necessary direction to judges and juries in deciding whether a crime has actually been committed. Finally, the separation of powers doctrine, which is fundamental to the Constitution, dictates that the legislature, not the courts, make law.
This may all seem academic on paper but in practice, history has proven that without these protections government is vulnerable to overreaching and abuse of authority. Unfortunately, the trade off is bad results in particular cases, and this certainly seems to be one of them.
In New Hampshire, the “rape” statutes, which are actually referred to as felonious sexual assault (aggravated or not) long ago did away with the obsolete distinction between intercourse and sodomy. Instead, any non-consensual penetration is punishable the same. New Hampshire laws were designed to avoid the kind of loopholes we see here by including a lengthy, highly inclusive list of ways in which penetration can lack consent.
In a legal system such as ours, which upholds the rule of law as the most sacrosanct of all principles, a bad result should ultimately lead to better legislation that reflects the true will of the people.
