What last week’s Supreme Court ruling actually said — and didn’t say — about sexual assault and drinking in Minnesota

A 20-year-old woman was standing outside a Dinkytown bar in May 2017 when a man, along with his male cousin and another male friend, invited her and her friend to a party. They agreed, and the man drove them to a house. But when they arrived, there was no party.

After arriving at the house, the woman — who had been denied entrance from the bar earlier for being overly intoxicated — passed out on a couch. She later woke up to the man, Francois Monulu Khalil, allegedly raping her. Khalil was later arrested and convicted of third-degree criminal sexual conduct, a conviction that in Minnesota has a maximum penalty of 15 years in prison and typically requires registry on a sex offender list.

Last week, the Minnesota Supreme Court unanimously ruled that Khalil’s case would be sent back to district court for a retrial because the original prosecution incorrectly used a statute in his case that defined the victim as “mentally incapacitated.”

The decision sparked outrage on social media, and the story was picked up by outlets around the country inferring that in Minnesota, someone cannot be raped if they voluntarily consumed alcohol before being sexually assaulted. But what Khalil did in this situation was still sexual assault, and still a crime under Minnesota law. The Supreme Court ordered a retrial under a different statute.

“It was, oh, the Supreme Court doesn’t respect women,” said Mary Moriarty, a former Hennepin County chief public defender, “And I thought, you know, that can’t be. So I read [the opinion] and realized that it was a really straight statutory interpretation.”

The loophole in the law

Minnesota law defines “criminal sexual conduct in the third degree” as sexual penetration by a person who “knows or has reason to know that the complainant is … mentally incapacitated.” The state statute currently defines “mentally incapacitated” as meaning “that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.”

Since the victim in this case became intoxicated before the assault occurred, she did not fit the state’s definition of “mentally incapacitated.” If the case is retried, Khalil could still be convicted, though likely on a lesser charge than third degree criminal sexual conduct. Advocates say this case demonstrates the “intoxication loophole” in Minnesota law, where a victim who was too intoxicated to consent to sex cannot be considered mentally incapacitated if they made the choice to become intoxicated in the first place — and therefore their assaulter is subject to lesser criminal charges.

Justice Paul Thissen, the judge who wrote the 6-0 unanimous opinion, began by saying “This case arises from an experience no person should ever have to endure,” before explaining the technicalities upon which the case had to be remanded.

In district court, the jury stumbled over Minnesota’s definition of “mentally incapacitated,” asking whether another person had to have administered alcohol to the victim without her agreement for her to qualify. The court instructed the jury that the victim could be considered mentally incapacitated. The jury then found Khalil guilty of third-degree criminal sexual conduct.

Khalil’s attorneys appealed the case, and the conviction was affirmed in appellate court. Khalil’s defense then appealed again to get the case to the Minnesota Supreme Court’s attention.

Moriarty, who has experience with sexual assault cases in her career as a public defender, emphasized that what happened to the woman in this case was a crime. And it still is a crime that will be retried, this time without using “mental incapacitation” as a baseline for Khalil’s charge.

If retried, Khalil’s case may only be eligible for a misdemeanor conviction rather than a felony.

“The issue was that the prosecutor didn’t like the penalty for the crime,” Moriarty said. “And so he or she tried to make it into a different crime by asking the judge to convict [Khalil] under this particular statute.”

Changes coming in Minnesota legislature

Justice Thissen emphasized in last week’s Supreme Court case that this is a legislative problem, and that the existing “loophole” in the law can be fixed by Minnesota legislators, not by the court. Two Minnesota state representatives have introduced a bipartisan bill that could do just that.

State Rep. Kelly Moller (DFL – Shoreview) is the chief author of legislation to update Minnesota’s criminal sexual conduct (CSC) statute, which includes a recommendation to close the “intoxication loophole.”

“Victims who are intoxicated to the degree that they are unable to give consent are entitled to justice. Our laws must clearly reflect that understanding, and today’s Supreme Court ruling highlights the urgency lawmakers have to close this and other loopholes throughout our CSC law,” Rep. Moller said in a statement. “Prosecutors, survivors, and advocates have identified the problem and the CSC Working Group did incredibly tough work to identify the solutions. Minnesotans who experience unthinkable trauma deserve to see the Legislature take action on this immediately.”

Rep. Marion O’Neill (R-Maple Lake) is a coauthor of the bill to fix the loophole in Minnesota law.

“This ruling underscores the need to change our criminal sexual conduct laws to reflect the reality that all victims unable to consent need justice, not just those who have been forcibly intoxicated,” O’Neill said in a statement.

But Moriarty cautioned that changing Minnesota legislation and the “mental incapacitation” statute too much could create another dangerous gray area in sexual assault litigation.

“If they had affirmed this [Supreme Court case], it would have meant that no woman or man could give consent if they had voluntarily been drinking. I mean, that’s kind of ridiculous. Women should get to choose to drink and to consent to sex. This statute would have made it so that if you drink, you cannot consent to have sex,” Moriarty said.

What this means for Minnesotans

Many Minnesotans are concerned about the consequences of this ruling and the precedent it could set for similar court cases in the future.

Katy Brooks, a 24-year-0ld paralegal at a Minneapolis law firm, was “devastated” when she saw the verdict. “Just a horrible precedent to set,” Brooks said. “I understand the judge’s ruling. It’s just absurd that the law was created with such a gaping loophole. It shouldn’t be a lesser crime if the victim was already drunk. It’s like they’re worried about too harsh of sentencing for rapists.”

Victims of sexual assault are regularly accused of “asking for it.” Women in particular are told to dress more conservatively or to modify their behavior in order to avoid being attacked. They’re told to watch every drink to make sure nothing is slipped in, to drink less while they’re out, to never trust strangers. If an assault does happen, blame is often placed on the victim — what could she have done differently?

In the Supreme Court opinion, Thissen wrote that he and his fellow justices are “mindful of and concerned” about the pervasiveness of sexual assault in the U.S. Thissen cites statistics from the Minnesota County Attorneys Association that nearly half of all women in the U.S. have been a victim of sexual violence, including an estimated 10 million women who have been raped while under the influence of alcohol or drugs.

Despite this concession, the final opinion has made a mark on some Minnesota women.

“Reading the big bold letters telling me that being drunk makes the sexual assault a lesser crime was a big blow,” Brooks said.

Reporting rates for sexual violence are already low — only about one in four victims report their assault to the police, according to statistics gathered by the Rape, Abuse & Incest National Network (RAINN). Only about 0.46% of all perpetrators will be incarcerated.

“The intoxication loophole has been around for a long time now, and it typically keeps people from even moving forward with pressing charges,” Brooks said. “Hopefully legislators will do something finally.”

Despite valid concerns from Minnesotans, Moriarty said that this decision does not mean that the court will invalidate a rape charge if the victim had been drinking.

“What I would say to women concerned about this is the Supreme Court was very clear that what was described here was a crime, and they sent it back to be tried under the appropriate statute,” Moriarty said. “And it continues to be a crime. If you are sexually assaulted, if somebody has sex with you without your consent, whether you’ve been drinking, whatever — it is a crime in Minnesota for somebody to have sex with you without your consent, period.”