The crime that the victim in this case endured was terrible, and it is tragic that she should have to testify again in a new trial. But the implications of the article that what allegedly happened in this case is not already a felony under Minnesota law, and that the state Supreme Court said so, are wrong.

According to the court's recitation of the facts, the victim passed out from intoxication and woke up while being raped. Minnesota's existing law provides that a person is guilty of at least a third-degree sexual assault — the felony of which the defendant in this now-overturned case was convicted — if he sexually assaults a person who is "physically helpless," which is defined as "(a) asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of a physical condition, or (c) unable to communicate nonconsent and the condition is known or reasonably should have been known to the [perpetrator]."

So why was the conviction overturned? Not because the law as written doesn't make the alleged actions a felony, but because the judge at the original trial made a mistake.

The judge instructed members of the jury that the defendant should be found guilty of the charged felony if they determined that the victim was either "physically helpless" or "mentally incapacitated" — but he misstated the statute's definition of that second term.

" 'Mentally incapacitated,' " the statute reads, "means that a person under the influence" of alcohol or drugs "administered to that person without the person's agreement … lacks the judgment to give a reasoned consent to sexual contact or sexual penetration."

The judge's instruction to the jury, however, ignored the words "administered ... without the person's agreement" and stated that a person who became drunk voluntarily would meet the law's definition of being "mentally incapacitated."

But that obviously is not what the statute says, as the Supreme Court unanimously held.

And that bad instruction spoiled the whole case. The Supreme Court wrote that "regardless of the district court's erroneous instruction as to the definition of mentally incapacitated," the jury might have actually determined that the victim was merely asleep or unconscious, and thus "physically helpless," without even considering how she became intoxicated, and might have come to the same guilty verdict.

But since there is now no way to know whether the jury instead based its verdict on the trial judge's bad instruction, the high court had to overturn the conviction.

It may be that changes to our state's sexual assault laws are warranted. But we should start with a better understanding of the current laws and what happened in this case. It was an unfortunate but obvious mistake by the judge at the original trial — not a criminal code that fails to make sexual penetration of an unconscious person a felony, nor a Supreme Court that callously rewrites the law to contradict common-sense understandings of "incapacitated."

Mark Wagner, of Minneapolis, is a lawyer.