Will the Minnesota Legislature’s plan to fix the sexual assault ‘intoxication loophole’ actually help?

In March 2019, Brenna Galvin attended a work conference and stayed with a friend overnight. Her friend invited her to a neighbor’s party where she decided to use some of her rare time off to have some drinks. Galvin became “very intoxicated,” and later that night, she was raped.

“I chose that evening to be a more carefree me,” Galvin said in an emotional testimony before the Minnesota Senate Judiciary Committee last week. “But unfortunately, she won’t ever be back.”

As an attorney herself, Galvin said she screened herself out of pressing charges against her perpetrator because she knew about the “intoxication loophole” in Minnesota law. The loophole was highlighted after the Minnesota Supreme Court threw out a rape conviction because the victim, who was drunk, was not forced to become intoxicated and therefore did not fit the state’s definition of “mentally incapacitated.”

“I looked at the law as it currently stands and thought, ‘Why would I go through this process? Why would I do that to myself after what I just experienced when the results wouldn’t be a very strong case?’” Galvin said.

Minnesota Supreme Court Justice Paul Thissen, who wrote the unanimous opinion in the case, State of Minnesota v. Khalil, emphasized that the “intoxication loophole” is a legislative problem, and that it can be fixed by Minnesota lawmakers instead of the court.

A bipartisan bill sponsored by state Representatives Kelly Moller (DFL – Shoreview) and Marion O’Neill (R-Maple Lake) attempts to do that. The bill has been approved by the public safety and judiciary committees in the House, and the Senate is considering adding the change in law to its budget bill for the courts and public safety.

The new proposed statutory language says that being mentally incapacitated means “that a person is under the influence of an intoxicating substance to a degree that renders them incapable of consenting or incapable of appreciating, understanding, or controlling the person’s conduct.”

Survivors are waiting to see what the Legislature will do. But if the new language for the mental incapacitation statute passes, there are still doubts as to whether it will be enough to effectively prosecute and convict perpetrators of sexual assault in Minnesota.

What the new statute language could mean for future cases

Carol Chomsky, a professor of law at the University of Minnesota who specializes in statutory interpretation, said that this change may be helpful to survivors of sexual assault.

For one thing, survivors of sexual assault may feel more comfortable pressing charges against their perpetrator because they know that being intoxicated won’t make their case weaker. Had the statute been in place for years already, survivors like Galvin who are familiar with sexual misconduct definitions in Minnesota may have felt more confident in their ability to win a case against their perpetrator.

“If a prosecutor interviewed someone and was considering whether to bring charges…it might be that all they can do is file for a misdemeanor, and it’s an awful thing to go through to be the victim to begin with and then to be the witness to make charges like this,” Chomsky said. “And if the result is a misdemeanor, it may not be worth the effort.”

Sexual assault cases are often retraumatizing for the survivor, and only about 0.9 percent of cases actually get referred to prosecutors, while 0.5 percent of cases will lead to a felony conviction, according to the Rape, Abuse & Incest National Network. But overcoming that first hurdle of getting a case off the ground may now be slightly easier in Minnesota with the passage of this new legislation — people like Galvin may feel like their case actually has a chance in court.

But once a case does go to trial, with added scrutiny from prosecutors and defense, the wording of the new statute could complicate things.

Words and syntax matter a lot in court. For example, in the appellate court opinion of the Khalil case, dissenters to the opinion argued about comma placements and how a seemingly minor syntax issue could change the legal definition of mental intoxication and potentially determine the outcome of the case. Judge Matthew Johnson even wrote in his dissent about the “text, grammar, and punctuation of the statute” as cause for deliberation.

DFL Senator Ron Latz clarified in a press conference that there is a “known component” to the new language. “The way the law is set up, a defendant would have to be proven to know or have reason to know that the victim was incapacitated by the consumption of alcohol or drugs.” The knowledge component could also exclude perpetrators who themselves are too drunk to know whether or not the victim is able to consent.

Consent on its own is a tricky concept, and can be heavily debated by attorneys before even moving forward with a case.

The newly proposed language says that a person is mentally incapacitated if they are “incapable” of consenting. According to Chomsky, this could present some difficulties for prosecution.

“They have narrowed the possibilities for conviction by saying it has to be to a degree that renders [the victim] incapable of consenting, which is a narrower extension of the statute than just saying someone can be convicted because they knew that the other person was under the influence of an intoxicating substance.”

In court, Chomsky said, proving that a person was intoxicated to the point of being incapable of consenting is already difficult. But complicating the matter further, the prosecution would have to prove that the perpetrator knew that the victim was incapable of consenting.

For now, the Democratic House and Republican Senate are using the same proposed language for the statutory change. And it’s likely to pass: the Khalil case sparked outrage on social media and breathed new life into Reps. Moller and O’Neill’s bipartisan efforts to close the “intoxication loophole.”

“Without this change in the law, I feel that more Minnesotans are going to be silenced,” Galvin said. “Even though I acknowledge that no punishment will fit this crime…there can be this changed Minnesota law that acknowledges that someone who is under the influence, whether they consented to drinking that night, or whether it was forced upon them, cannot possibly consent to the act of feeling how I felt for the last two years.”