I don't know why it's taken so long for social media to pick up this story from about a year ago regarding a court in Oklahoma ruling that oral sex on an unconscious victim wasn't forced sexual assault under the law, but suddenly it's popping up everywhere. And of course people are all pissed off and screaming about how stupid the court is and how they are blaming the victim and saying it's not sexual assault to take advantage of someone who is unconscious and (insert hyperbole here).
Everybody just slow your roll.
If you've been losing you shit at the court about it, either when the ruling came out last year or recently when it's in the Twitters and the Facebooks and what have you, you are doing it wrong.
So, th legislatures make laws for their states. They write them, they argue about the particular language, they reach some agreement, it gets signed into law. Then, said law is now subject to interpretation by the courts. This is probably something you heard about in school when they taught you about the different branches of government. The legislative branch makes the law, the judicial branch interprets the law, and the executive branch enforces the law. #CivicsClassThrowback
So courts have to interpret the law that other people wrote. And fun fact: they aren't writing them so it's easy to read or understand. So interpreting them can be difficult.
But! There is something called the canons of statutory construction! Not to be confused with the cannons of statutory construction, where they just shoot books of statutes at you. No, CANONS. A.k.a. RULES. But canons sounds fancier so we use that.
There are a lot of canons. They cover a lot of things and it can be pretty dry and technical. But, the first rule of statutory construction club is we do not talk about statutory construction club. Wait. No. Wrong club. That first rule of statutory construction club is if the language of the statute is clear/plain, the court cannot interpret the statute at all. The plain language controls and there is no further interpretation by the court. Only if the statute is unclear may the court then move on to other canons to try to interpret the law.
For example: if the law said "No one can drink that water from any outdoor man-made pool" that is clear. No drinking from any outdoor, man-made pools. However if the law said, "No one can drink from any pool of water" that is not as clear. "Pool of water" can describe many things. A lake, a puddle, a swimming pool, a bay, a bucket of rain water, etc. So, in the pool of water law, the court could rely on the canons to interpret what the legislature meant. In the first one, they couldn't.
Real world example: in Minnesota, it's illegal to drive a car without insurance in any public roadway. Therefore, according to the plain language, you can drive an uninsured car on a private roadway. I have actually made this argument and won in the past. Plain language is what controls first.
In determining plain language meaning, the court is supposed to rely on customary use of words and dictionary definitions unless the statute says otherwise. For example, the common use of the word "sale" refers to exchanging money for goods or services. In Minnesota, the legislature has defined "sale" for drug charges to mean to buy, sell, give away, barter for, or transfer. So in those cases, the court must use the legal definition for sale because it's been specifically defined.
I haven't been able to find the exact wording of the Oklahoma statute, but from what I understand, the defendant was charged with oral sex by force on a victim who was so intoxicated she was completely passed out and that "by force" was the pivotal word.
Force, in customary usage, means with effort, exertion, something that requires more than ordinary movement, using strength, against resistance. That's why we can open a door or force a door open. One implies it opened with ease. The other implies resistance from the door that requires more effort.
A person who is completely unconscious cannot resist. Therefore, a person performing sexual acts on the passed out person does not have to use force. There's no resistance, no need to exert oneself, nothing beyond routine physical moments.
End of analysis.
But, but, but it's horrible! They took advantage of an unconscious person! It's forceful to do something against the other person's will! Other objection here!
It is horrible, it is taking advantage, but it's not force just because it's against the other person's will. If someone threatens to hurt me if I don't do something, and I do it to avoid getting hurt, I've been coerced. If I'm totally unaware of what's going on, I'm not being forced or coerced.
The first rule of statutory construction club is if the language of the statute is clear, the court cannot do any interpretation & must follow the plain language. End of analysis.
So, yeah, it sucks. It isn't fair to the victim. But the problem isn't with the court's interpretation. The problem is the law sucks. The law needs to be modified. It's not the court's job to make it fit. The legislature needs to do it. They make the laws.
So the court's determination in the case wasn't a tacit approval of the alleged actions. It was a ruling based on the constraints of the law. I'm sure they personally were disturbed by the allegations as any normal person. But that doesn't mean they can ignore the canons. They are bound to follow the rules even if they don't like the outcome.
So blame the legislature for making a law that wasn't good enough. Don't blame the court for doing exactly what it was required to do.
Also, if the court HAD gone beyond the plain meaning, they would have been activist. ACTIVIST JUDGES ARE THE WORST! Well, you can't have it both ways. They can't be activist only when it suits your cause.