Minnesota Senate considering bill to redefine 'mentally incapacitated' for rape victims

Anne Toohey was enjoying a girls night with takeout and wine in 2019 when her friend's male roommate came home and joined the festivities.

Friends put Toohey to bed after the wine mixed with her prescription medication took an unexpected toll. Her next cloudy memory was of her friend's roommate creeping into the guest room and kissing her while she repeatedly pleaded with him: "I'm married, I love my husband."

After realizing she was raped and reporting it, she was told she wouldn't get justice in court because state law didn't consider her physically helpless and defines a victim of sexual assault as "mentally incapacitated" only if the person was forcibly drugged — not if someone was voluntarily intoxicated.

Minnesota's divided Legislature is closer to eliminating the "mentally incapacitated" loophole, after a recent state Supreme Court ruling sparked outrage and put renewed attention on the decades-old state law. The court granted a man convicted of rape a new trial because the victim was voluntarily intoxicated when the assault occurred.

"I'm terrified other sexual assault survivors will have to live through what myself and my family have been through if the law stays the way it's written," said Toohey, a married mother of two from Excelsior who was one of several women who offered heart-wrenching testimony in a Senate hearing Wednesday evening to consider changing the law.

The Senate is considering a proposal that would expand the definition of mentally incapacitated to include someone who is "under the influence of an intoxicating substance to a degree that renders them incapable of consenting." Under current law, a person who sexually assaults a voluntarily intoxicated person is likely to face a gross misdemeanor. The change would make it easier for perpetrators to face felony charges in those cases.

That lines up with a proposal already moving in the DFL-led House, but sexual assault survivors and advocates say the change is only one piece of a broader effort to overhaul the state's criminal sexual conduct laws.

"We shouldn't wait for other bad case law in order to make the other important changes in the bill," said Rep. Kelly Moller, DFL-Shoreview, who is sponsoring the bill that would change the definition of mentally incapacitated, and also address other gaps in state law. "There should be no hesitancy to quickly pass the entire bill this session."

Moller's bill, prompted in part by the Star Tribune's Denied Justice investigative series that exposed gaps in prosecuting rape cases, also establishes a new crime of sexual extortion, defined as when someone blackmails or threatens a victim into unwanted sexual contact. It makes age-related changes to protect children from assault and eliminates dated provisions that define adultery and sodomy as a crime.

The sweeping changes followed a nearly two-year working group that included survivors of assault, advocates, prosecutors, public defenders and law enforcement.

"This was an expansive, disparate group and the recommendations put forth are only those that garnered broad agreement," said Lindsay Brice, the law and policy director for the Minnesota Coalition Against Sexual Assault, which supports the broader legislation. "Survivors are watching to see what the Legislature will do."

The March Supreme Court ruling breathed new life into the effort, which had moved through several House committees but was languishing in the Senate.

The ruling granted a new trial to Francios Momolu Khalil, a man convicted of criminal sexual conduct for raping a woman in 2017 after she'd been denied entry to a Dinkytown bar for being too intoxicated. Khalil offered to take her to a party, but instead brought her back to his home and raped her.

The Supreme Court ruling said the lower court's definition of mentally incapacitated in this case "unreasonably" strained a plain reading of state law because the victim was already intoxicated when she encountered her attacker.

At the same time, the court teed up the issue for lawmakers, writing that "legislative bodies are institutionally better positioned than courts" to debate complex policy issues.

At the Wednesday hearing, Senate Republican Judiciary Committee Chairman Warren Limmer said the ruling made the "discussion ripe for attention."

The Senate is considering adding the change in law to its broader budget bill for the courts and public safety. The broader proposal in the House has cleared several committees.

Sen. Dave Senjem, R-Rochester, who is sponsoring the broader overhaul, said he's hopeful the committee will consider other changes. But he said he's grateful the committee is considering the mentally incapacitated change.

"That will heal a hole in our law," he said, "that has allowed things like what has been described tonight to go on for far too long."