If you didn’t know better, you would scream that this can’t be.  After all, this wasn’t a case of some post hoc regret, or a couple of beers used as an excuse to claim lack of consent when there was consent aplenty, but no personal responsibility. As the Guardian explained, this was the real deal.

An Oklahoma court has stunned local prosecutors with a declaration that state law doesn’t criminalize oral sex with a victim who is completely unconscious.

The ruling, a unanimous decision by the state’s criminal appeals court, is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape.

What sort of insanity can this be?  Does this prove how the courts care nothing about rape and sexual assault? Did the Oklahoma Court of Criminal Appeals blame the victim? Did they care nothing about this unconscious young woman?  Outrageous!

Except it’s a lie. The court did nothing of the sort.

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

“Forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation,” the decision read. 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. “We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”

It’s not that the quoted portion is false, but incomplete. The full quote from the brief opinion:

The State’s sole proposition of error is that the trial court erred in ruling that Forcible Sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation. Finding no error, the State’s appeal to this Court is denied. The Legislature’s inclusion of an intoxication circumstance for the crime of Rape, 22 O.S. § 1l1l(A)(4), is not found in the five very specific requirements for commission of the crime of Forcible Sodomy, 22 O.S. § 888(B).

Ken White at Popehat does a lawsplainer to fill in the myriad blanks that fail to conform with the need for outrage:

In fact, it is illegal in Oklahoma to rape someone who is unconscious. That is, to be explicit, under Oklahoma’s rape statute it’s illegal to vaginally or anally penetrate someone when “the victim is at the time unconscious of the nature of the act and this fact is known to the accused.” It’s also illegal if the victim is unconscious as a result of a drug administered by the accused.

But Oklahoma, like most states, separates unlawful anal or vaginal penetration from unlawful oral penetration. Oklahoma law — like the law of many states – still categorizes oral sexual contact as “sodomy” and refers to it as part of “the detestable and abominable crime against nature.” Oklahoma is one of 14 states that still has a law criminalizing sodomy on the books.

It’s not that others couldn’t find this out for themselves, or even that the Guardian wasn’t aware of the existence of this gap in the law.  It’s all there to be found, and the Guardian acknowledged, somewhat, that maybe their stoking the flames of outrage at the court was a bit disingenuous.

But legal experts and victims’ advocates said they viewed the ruling as a sign of something larger: the troubling gaps that still exist between the nation’s patchwork of laws and evolving ideas about rape and consent.

Not to pass on an opportunity to spin the story, even this tacit acknowledgement that essentially the entirety of the story was framed in such a way as to convey a totally false sense of outrage is used to manufacture “something larger” and “troubling” about this “pathwork of laws.” Bizarrely, they wrap it up in “evolving ideas about rape and consent.” Is the Guardian suggesting that we rewrite the laws twice a week to keep abreast of its “evolving ideas”?

When the Connecticut Supreme Court dismissed rape charges in the Fourtin case, Gideon at A Public Defender made the effort to explain that it wasn’t that the rape of a handicapped woman wasn’t wrong, but that the prosecutor charged the defendant under the wrong law. He got slammed for his efforts, as no one cared to do the hard work of thinking when there was a story to be outraged about.

The Oklahoma law, which the court refused to rewrite to provide something entirely different than what the law said, had a gap into which this case fell. Of that, there’s no doubt, as oral sodomy was not covered when vaginal or anal sex with an unconscious woman would have constituted rape.  Laws are hard to write, and often fail to anticipate a twist in human conduct that later shows a gap. Or overbreadth that makes lawful conduct illegal by mistake.

But the reaction to learning that such a gap exists, in an atmosphere of outrage, can push the fix far beyond the problem discovered by the particular fact pattern in the name of never letting anyone escape punishment for something that offends those “evolving ideas.”

In the wake of the ruling, [Tulsa County District Attorney Benjamin] 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, [CUNY Law School Dean Michelle] Anderson said, part of a movement to fall in line with the modern understanding of rape.

“There is a recognition that social mores have changed, that the law should now try to protect sexual autonomy as opposed to sexual morality,” she said. Often, the law changes after an outcry over unpopular court rulings.

And, indeed, the law is in need of change, as it is archaic and the omission of oral sodomy from the rape statute needs to be addressed.  But then, that’s not the change they’re talking about here, tweaking the law to fill an apparent gap.  After all, why waste a good outrage when there are “evolving ideas about rape and consent” to be addressed.