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Why Rape Isn’t Rape, Depending on Where You Live

Last week, the shocking headline made waves across the internet: the Oklahoma Court of Criminal Appeals found that oral penetration of an unconscious woman was not sexual assault. The case presented what seemed like a clear-cut case of sexual assault: the 16 year victim was drunk and unconscious when her 17 year old companion claimed that she consented to oral sex. He was charged with forcible oral sodomy, a charge that was ultimately dismissed by the appellate court. The reason for this staggering decision? The way that Oklahoma’s laws are written, the definition of rape includes situations where a person cannot consent because they are too intoxicated or unconscious. But Oklahoma’s definition of rape does not include oral rape — leaving a major legal loophole where oral sodomy is classified differently than other types of sexual assault. So while the decision is shocking, it is technically correct under the law. And this raises a much bigger issue: the patchwork of sexual assault laws across the United States, many of which are incredibly outdated.

Over half of U.S. states define sexual assault in terms of the use of physical force. This means that even if an alleged victim does not consent to sex, she or he may not have been raped — simply because physical force was not used. Some states expressly require force as an element of the crime — so if a perpetrator does not use force, a rape has not occurred. For other states, force isn’t an element of the crime, but it is listed as one of the components of non-consent (i.e., that the alleged victim did not consent because force was used). Even more disturbing, some states don’t just require the use of force — but significant physical force, such as death or serious physical injury— to be considered rape. Here in Pennsylvania, sexual assault laws are muddled, with the crime of “aggravated indecent assault” factoring in the victim’s lack of consent, but the crime of rape does not consider consent. Until 2013, even the federal government had a problematic view of rape, which it defined for purposes of crime reporting as something that can only happen to women.

The Oklahoma case, while disturbing, is a reflection of the current state of our laws. Many states have simply not updated their laws to reflect the more contemporary understanding of sexual assault, particularly when it comes to the use of force and inability to consent due to intoxication. Click here to see how your state defines sexual violence, and contact your local or statewide anti-sexual assault organization to ask how you can get involved in changing these laws. We don’t need to wait for rapists to go unpunished by unjust laws; by advocating for better laws now, we can avoid decisions like the Oklahoma one.

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