Sex without consent is a serious crime. Or so we thought. In the state of Oklahoma, consent to oral sex is apparently not required if your potential partner is passed out.

Oklahoma Capitol building.

© 2006 Wikipedia Commons/Daniel Mayer

In reviewing the case of a 17-year-old defendant and a 16-year-old girl who was so intoxicated she was taken to the hospital, Oklahoma’s Court of Criminal Appeals upheld a trial court’s ruling that forcible sodomy cannot occur when a victim is so intoxicated as to be completely unconscious at the time of oral sex. The state criminal code recognizes rape in cases of vaginal or anal penetration under such circumstances. It’s just not recognized when it comes to oral sex.

This is shocking, but the truth is that many US states have not updated their laws on sexual assault. Instead, outdated provisions that effectively blame – rather than protect – victims remain in place. For example, while marital rape is illegal in all 50 states, in some states it is still subject to different legal standards – such as heightened requirements that the act have been perpetrated with force – that make it difficult to prosecute.

In the wake of significant advances in thinking about sexual violence, the nongovernmental American Law Institute is revising the model penal code on sexual offenses, stating that the existing one, which is over 50 years old, is “no longer a reliable guide for legislatures and courts.” Hopefully, this will push states to modernize their own codes.

Outrage over this case should spur this process forward in Oklahoma. But despite the outrage, Oklahoma and other states should avoid unhelpful reactions like rushing to try children as adults, as has happened in other states, and pushing to lock up children convicted of rape under all circumstances. The injustice in this case lies squarely in the failure of the law to recognize oral sex without consent for what it is: sexual violence.