Story highlights

Oklahoma lawmaker says the law will be fixed by next week

Ruling relates to a case where a 16-year-old girl said she was sexually assaulted

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

CNN  — 

An Oklahoma lawmaker is promising to close what he called a “court-created loophole” in state law that blocked the prosecution of a teenager accused of sexually assaulting a drunken girl two years ago and set off cries of protest around the nation.

“I am horrified by the idea that we would allow these depraved rapists to face a lower charge simply because the victim is unconscious,” Rep. Scott Biggs said earlier this week in announcing plans to rush a fix through the legislature.

The Oklahoma Court of Criminal Appeals ruled March 24 that a lower court judge was right to dismiss a forcible oral sodomy charge against the teenaged suspect because state law doesn’t mention intoxication or unconsciousness among the five criteria describing the crime.

Biggs, a former prosecutor, said he thought the judges got bogged down on details and lost sight of the big picture.

“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. “Unfortunately, legal minds often get stuck on questions of semantics, when it is clear to most of us what the intent of the law is.”

Biggs said Thursday on Facebook that he has amended another bill he sponsored to serve as the vehicle to quickly change the law.

“We should have this court-created loophole fixed next week,” he wrote. “While I can’t find the words to express my deep sorrow for the victim and her family, I can guarantee them this will be fixed.”

The case put Oklahoma in a harsh spotlight, with headlines in national publications, websites and members of the public asking variations on this question, posed on So it’s not rape if she’s passed-out drunk?

“Heartbroken and outraged at the ruling in OK,” Planned Parenthood President Cecile Richards tweeted Thursday. “Our courts and laws cannot dismiss the violence women face.”

Others said they were embarrassed.

The ruling

The court’s decision involves 2014 accusations against a 17-year-old boy accused of sexually assaulting a 16-year-old female schoolmate after smoking marijuana and drinking in a Tulsa park.

After the girl became incapacitated and unable to walk – her blood-alcohol level was later found to be four times the legal limit to drive – two friends carried her to the suspect’s car, who allegedly forced her to perform oral sex.

The boy initially told police that it was all consensual, but the girl told investigators that she had no memory of it.

Prosecutors charged the boy with first-degree rape and forcible oral sodomy. The rape charge was later dropped due to lack of evidence.

A district court judge then dismissed the forcible oral sodomy charge based on the wording of the state law. It is distinct from the laws for rape, which is defined in the state as a forced act of “sexual intercourse involving vaginal or anal penetration.” The ruling was appealed to the Oklahoma Court of Criminal Appeals, which upheld the lower court’s decision.

In its ruling, the court dismissed the charge because unconsciousness and intoxication are not mentioned in the state’s forcible sodomy law.

“We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language,” the court ruled.

Rewriting the law

Benjamin Fu, director of the special victims unit for the Tulsa County District Attorney’s Office and the lead prosecutor on the case, called the decision absurd.

“I don’t believe that our legislators or our citizens believe that we as prosecutors or as a public should be focusing on the conduct or choices that a victim made in order to determine whether or not an assailant should face criminal liability,” Fu told CNN affiliate KTUL.

Assistant Director for Domestic Violence Intervention Services Donna Mathews says it’s imperative that the language of the law be changed. “The legislature has the job of making it right and the rest of us as the public the job of reaching out to our legislators to say ‘we want you to do this’,” Matthews told the station.

But Shannon McMurray, an attorney for the defendant, told Oklahoma Watch she thought prosecutors handled the case poorly.

“The court agreed what the state was attempting to do was rewrite statute and add an element,” McMurray said. “You can’t substitute force with intoxication under the law.”

The verdict was issued “unpublished” – meaning that it cannot be used as precedent. But Fu expressed concern that it might still be used to inform similar defenses in other cases.