From The Ethics Alarms Law vs. Ethics Files: Yet Another Example Of How The Public’s Ignorance Of How Laws Work Imperils Us All


Because he just IS, that’s all. Everybody knows it. Come on. What’s the problem?

Well, I’m still waiting for the wave of op-eds and pundit pieces condemning the judge in the Dennis Hastert case for somehow turning the ex-Speaker’s trial for breaking banking laws into a trial for child molestation even though he couldn’t be charged with that crime.

I appear to be one of the very few people alarmed by this. Coming at a time when we have a Presidential candidate advocating the imprisonment of financial traders without any indications that they broke actual laws, this qualifies as a bona fide societal virus, and a potentially dangerous one.

Over at Popehat, habitual Ethics Hero Ken White flagged another outbreak that somehow I missed (I blame Fred).

It seems that an Oklahoma court rejected the prosecution of a teenage boy for engaging in oral sex with a teenage girl (she was, to be delicate, the oral recipient) who was passed out drunk, and the Court of Criminal Appeals agreed, ruling:

“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. We will not, in order to justify prosecution of a person for an offense, enlarge a statute beyond the fair meaning of its language.”

Ken begins, tongue hard in cheek,

“Did you hear? Oklahoma said it’s legal to rape someone if they’re unconscious from drinking! They said it’s not rape at all! It’s classic victim-blaming! It’s outrageous! It’s rape culture! It’s just what you would expect from one of those states!”

He then examines the statutes involved. It turns out that the unimaginative legislature, when defining the crime of forcible sodomy which was what the boy was charged with, missed this set of potential facts. She wasn’t forcibly raped, because she wasn’t conscious.

Quoth Ken,

“There was no normative judgment about rape. Nobody suggested that people who drink are asking for it. The normative judgment was about criminal procedure: if the law doesn’t prohibit something, then you can’t convict someone of it (or, in this case adjudicate a juvenile as delinquent).”

This undeniable fact didn’t stop critics of the decision reacting with outrage that the court refused to act on the spirit of the law.

The prosecutor, Benjamin Fu, said he was “flabbergasted” by the decision, and argued that the court should have applied the intent of the law to a case the legislature had not anticipated. “This does not reflect our laws, the temperament of our Legislature or the values or beliefs of Oklahoma,”  Fu said.

It may not “reflect” the law, but the courts obeyed the law. People should not be prosecuted under laws that don’t specifically designate the conduct involved as illegal, no matter how wrong it is.

Fu should know this, and I suspect he does. He botched the prosecution, charging forced sodomy when the criminal statute on sexual assault would have applied to the defendant’s crime. This result was therefore his fault, and he should have the integrity to admit it.

In sympathy with Fu was Scott Biggs, an Oklahoma state representative, who accused the court of making a “grave error.”  “Unfortunately, legal minds often get stuck on questions of semantics, when it is clear to most of us what the intent of the law is,” Biggs said in a statement.

Watch out for these people, who lurk on both sides of the ideological divide, many in places of power, like the White House. When they feel they are in the right, the fact that the law happens not to support them is seen as no just obstacle. Twist the law to meet the objective, rather than follow the letter of the law. It isn’t as if the U.S. doesn’t have too many laws already, we have elected officials insisting that laws also can be used to accomplish what they don’t even mention.

We will come to miss Antonin Scalia more than we know.  “Getting stuck” on what words mean is why lawyers exist: without rigorous insistence that laws are clear and only enforced within their words, a totalitarian government can use laws as weapons to restrict our personal liberty by extrapolating their meaning and intent.

“Colloquially and morally, the defendant is a rapist. Under Oklahoma law, he’s not,” writes Ken. “The problem is with the statute — so fix it. The problem isn’t with our failure to convict people for things that aren’t already illegal.”


Yes, yes, I know, you merciless ones. I know I praised Chief Justice Roberts for saving the Affordable Care Act from the destruction such a sloppy piece of legislation so richly deserves when he found the individual mandate to be a tax and not a penalty, even though the Obama Administration had insisted that it wasn’t a tax. Justice Scalia was enraged, and you may well ask how I can reconcile my salute to Roberts’ courage with my post today.

I’m sure I can do it, but damned if I know how at the moment…

15 thoughts on “From The Ethics Alarms Law vs. Ethics Files: Yet Another Example Of How The Public’s Ignorance Of How Laws Work Imperils Us All

  1. I suppose that this means if Cosby had done his dirty deeds in Oklahoma rather than in Hollywood, he wouldn’t have been charged since at least some of his victims had been drugged and were unconscious. Hey, a “get out of jail free card!”

  2. Yes, our ethics can trap us when we agree with something we like, even if it’s not legal, but then call out others when it’s something we don’t like. It appears that you’ve woken up to that fact. I hope so because for America to truly be a land of the free, we need to see the harm our own side does as well as the harm done by the other side. If we can really start to do that, we might be able to save this country. If not, we are doomed because it will continue to divide us and we will slide right on into totalitarianism, which is where we are headed no matter who is elected President.

    • That’s no good in my eyes. So we let illegal laws be passed because the public will be disappointed if we don’t? The majority of the public opposed the law, it was corruptly passed, and involved multiple Constitutional errors.

      I also don’t believe anything would have happened on that scale. I believe Roberts felt that if the law could be saved by finding a reasonable construction that passed Constitutional muster, it was in the best interest of the court and the public’s faith in the government to do so. I still think it was courageous, whether he was right or not.

  3. So the male offender could have been charged with “sexual assault”, but not “forced sodomy”? Or were both laws equally silent the particular circumstances?

    • No, a Popehat reader pointed out to Ken that sexual assault would be covered by the facts.

      B. No person shall commit sexual battery on any other person. “Sexual battery” shall mean the intentional touching, mauling or feeling of the body or private parts of any person sixteen (16) years of age or older, in a lewd and lascivious manner:

      1. Without the consent of that person;

      There’s a 10-year maximum sentence.

  4. Jack: Be nice to Fred. I am sure I will understand what you mean by “oral recipient,” but damned if I know how at the moment. If you said, “she was penetrated orally,” that would still be ambiguous, and the suspect’s choice of body part to perpetrate the penetrating would still be unclear.

  5. It seems clear that the prosecutor is at fault here for an overzealous charge when a lighter charge would have been a slam dunk case.

    Kind of like how it was impossible to believe George Zimmerman would be charged with murder, but perhaps could have been found guilty of negligent homicide if the prosecutors had gone with that.

  6. This is very similar to what has been happening in MLB now that they’ve instituted instant(?) replay. All those nitpicky little things that are in the rule book are being enforced as they are written, and not necessarily how they’ve been interpreted over the past century or so. For one thing, we’re witnessing a rapid evolution in the art of sliding..

  7. For an extreme example, see here.

    Even the allegation that Scott Lively planned, prepared, and organized criminal violence against people in Uganda for being gay or lesbian would not constitute a crime against humanity, For such an allegation would fall under domestic criminal matters and as such beyond the reach of international law.

    and it hardly needs to be restated that domestic policy is beyond the reach of international law.

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