In a disturbing ruling, the Oklahoma Court of Criminal Appeals declined to "enlarge the statute" for forcible sodomy, and declined to apply the forcible sodomy statute to victims who are intoxicated or unconscious.
The court claimed that none of the 5 factors enumerated in the statute are applicable when the victim is intoxicated or unconscious.
It happens rarely, but my personal opinion here is that the ruling is incorrect, and not just on the emotional level.
Subsection (B)(2) clearly includes into the crime of forcible sodomy a "sodomy committed upon a person incapable through mental illness or any other unsoundness of mind of giving legal consent regardless of the age of the person committing the crime".
Both or either intoxication and unconsciousness can be argued to be temporary unsoundness of mind.
What was created in Oklahoma is a dangerous precedent encouraging rapists to get their victims drunk in order to escape criminal liability.
And that's definitely not the legislative purpose of the statute.
Oklahoma has become a dangerous state. With just one 2-page decision by these five judges:
All of these 5 people unanimously concurred in ruling that intoxication or unconsciousness does not fall under temporary unsoundness of mind preventing consent to sodomy - that's oral or anal sex without consent.
I understand the concept of judicial restraint and unwillingness to legislate from the bench.
Yet, here this concept was completely uncalled for.
These 5 people left residents and visitors of Oklahoma unsafe to sexual assaults if they are in a helpless condition.
These 5 people also gave an opportunity for really sick crimes to be committed - because such an approach does not take into consideration as to who rendered the person intoxicated or unconscious.
These 5 judges put together a defense for really sick individuals to first lace the drink or get a person drunk, or beat the person unconscious - and THEN rape him or her.
The sick birds on the street are no thinking - "we've got a free ride" out of prison.
Think about it - with those shining biographies.
A high school.
A law school.
Career as a lawyer.
Career as a judge.
FIVE PEOPLE, all educated as lawyers and judges - could not READ and understand that "unsound of mind" applies to unconsciousness or intoxication.
Unanimously they could not read that?
Or, another, more sinister explanation may be that they know there is some pervert in their ranks who is afraid for the statute to be - soon - applied to him and her, and they unanimously protect that pervert by their decision?
It is not very often that I think prosecution in a criminal case is right.
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