BY JENNIFER BRICK
It’s the rule of threes — this time the three states in 2016 mostly likely to be remembered for their bad laws. Obviously, we have our home state of North Carolina’s HB2. Then there’s Mississippi’s HB 1523. Finally, Oklahoma’s 21 O.S. § 888: this law defines what the state call “forcible oral sodomy.”
Oklahoma’s sex offense law covering oral sex has been on the books for several years, but has made the news in the last two weeks when the Oklahoma Court of Appeals upheld a lower court’s decision that a seventeen-year-old boy was not guilty of sexually assaulting a sixteen-year-old classmate.
CNN reported that the female classmate was, at the time, so incapacitated by alcohol and marijuana that she had a blood-alcohol level of four times the legal limit and was unable to walk when she was carried to the boy’s car by two “friends.” There, the boy allegedly forced her to perform oral sex.
However, Oklahoma defines rape as nonconsensual vaginal or anal penetration and lists oral sex under its forcible sodomy law. To meet the definition of “forcible oral sodomy” there has to be physical force or violence or threats thereof. Intoxication and/or unconsciousness are not listed as elements of the crime. (The law does read that it is a crime if “committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent.” I would argue that being blackout drunk is being temporarily unsound of mind, but that’s not what the state means.)
By the letter, no crime was committed. Yet, we know that this girl was in no condition to meaningfully consent and, therefore, what happened was wrong and there should be recourse.
In NC, the boy would charged with second-degree forcible sexual offense because the girl was “mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.” If found guilty, it would be a Class C felony of 44 to 128 months.
So good on you, NC, for having laws that protect the helpless. And, it seems like at least one OK lawmaker is trying to amend the law to remove technicalities that currently exist.
But we need to do more. We need to read our laws to advocate for change that reflect our current realities. Also, in a culture where “no means yes” is still a locker room joke and the struggle before submission is glorified in our media, teens — boys and girls — need to be educated about the dangers of drugs and alcohol, about peer pressure, about consent. Especially consent.
Jennifer Brick is a freelance writer and former teacher in Durham, North Carolina. She earned her Masters of Fine Arts in Creative Nonfiction from Goucher College. Follow her on Twitter @jenbrickwrites.