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The ruling sparked outrage among critics who argue the judicial system engaged in victim-blaming and upholding outdated notions about rape and sexual assault. The case involved allegations that a year-old boy assaulted a girl, 16, after volunteering to give her a ride home. The two had been drinking in a Tulsa park with a group of friends when it became clear that the girl was badly intoxicated.

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Another boy, who briefly rode in the car, recalled her coming in and out of consciousness. Still unconscious, the girl was taken to a hospital, where a test put her blood alcohol content above. She awoke as staff were conducting a sexual assault examination. The boy claimed to investigators that the girl had consented to performing oral sex.

Tulsa County prosecutors charged the young man with forcible oral sodomy.

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But the trial judge dismissed the case. And the appeals court rulingon 24 March, affirmed that prosecutors could not apply the law to a victim who was incapacitated by alcohol.

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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. Jennifer Gentile Long, who le a group, AEquitas, that guides prosecutors in sexual and domestic violence cases, agreed. She said the Oklahoma law was an example of a gulf that still exists in some places between the law and evolving notions around consent and sexual agency.

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Oklahoma has a separate rape statute that protects victims who were too intoxicated to consent to vaginal or anal intercourse, Long noted. In the wake of the ruling, Fu has said he will push for lawmakers to change the code. Many states have engaged in a broad overhaul of their rape laws in recent years, Anderson said, part of a movement to fall in line with the modern understanding of rape. Often, the law changes after an outcry over unpopular court rulings. The Oklahoma appeals court declined to make the ruling a precedent.

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But Fu said he has learned that other defendants are nevertheless making the same argument in other parts of Oklahoma to avoid charges. She told Oklahoma Watch, which was first to report the rulingthat prosecutors were clearly in the wrong to charge the young man with forcible sodomy, and not a lesser crime of unwanted touching. This article is more than 5 years old.

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Oklahoma court: oral sex is not rape if victim is unconscious from drinking