Minnesota Supreme Court says rape victims too intoxicated to consent aren't 'incapacitated'

In Minnesota, a person who is sexually assaulted while intoxicated isn't considered "mentally incapacitated" if he or she consumed alcohol or drugs voluntarily, according to a new state Supreme Court decision that could have far-reaching consequences for rape victims.

The state's highest court released the opinion Wednesday, also granting Francios Momolu Khalil, a man convicted of criminal sexual conduct, a new trial. In 2017, Khalil picked up a woman who had been refused entry from a Dinkytown bar for being too intoxicated. Khalil offered to take her to a party, but instead brought her back to his north Minneapolis home. She passed out and woke up to Khalil raping her.

A jury found Khalil guilty of third-degree criminal sexual misconduct, determining the victim was mentally incapacitated from alcohol and a prescription narcotic.

The 6-0 Supreme Court decision, written by Justice Paul Thissen, says the lower court's definition of mentally incapacitated in this case "unreasonably strains and stretches the plain text of the statute" because the victim took intoxicants before encountering her attacker. The statute "means that a person under the influence of alcohol is not mentally incapacitated unless the alcohol was administered to the person under its influence without that person's agreement," wrote Thissen. Justice Margaret Chutich did not participate in the case.

Based on the court's interpretation, a person who sexually assaults a voluntarily intoxicated person would likely face a gross misdemeanor, rather than a felony, meaning they would not be placed on the Minnesota Predatory Offender Registry.

"This case arises from an experience no person should ever have to endure," the opinion states. Thissen also writes that the court justices "are mindful of and concerned" about the pervasiveness of sexual assault in the United States. Citing a brief from the Minnesota County Attorneys Association, Thissen writes, "nearly half of all women in the United States have been the victim of sexual violence in their lifetime — including an estimated 10 million women who have been raped while under the influence of alcohol or drugs." The opinion cites the Legislature's "unique individual capacity" to address the policy language.

The decision highlights the critical need for stronger laws protecting victims, said Christina Warren, senior attorney for the Hennepin County Attorney's Office Sexual Assault Initiative.

For the victim, a new trial means something most people can't fully understand, Warren said. "This means she will have to testify again."

The opinion comes after a new report, prompted by the Star Tribune investigative series "Denied Justice," that urges lawmakers to adopt stricter laws to protect victims of alcohol-related sexual assault. The report found that the current law poses a "significant roadblock" to prosecuting cases where someone is voluntarily intoxicated but unable to consent.

"This has been a problem specific to Minnesota for a long time," said Lauren Rimestad, spokeswoman for the Minnesota Coalition Against Sexual Assault.

More than a half-dozen states, including Wisconsin, have laws on the books that outlaw engaging in sexual contact with a person who is too intoxicated to consent. But Minnesota's statute makes it "difficult to impossible" to successfully prosecute these cases, said Rimestad.

"Judge Thissen's decision just clarifies that our law needs to be fixed through the Legislature, not through courts," she said.

Earlier this year, Rep. Kelly Moller, DFL-Shoreview, introduced a bill currently moving forward in the House that would amend the third-degree sexual misconduct statute to include a person who is intoxicated to a degree that makes them incapable of consenting to, or understanding, a sexual encounter. Moller said victims have testified in committee hearings with nearly identical stories to the victim assaulted by Khalil.

"Victims who are intoxicated to the degree that they are unable to give consent are entitled to justice," she said in a statement. "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 [criminal sexual conduct] law."

Rep. Marion O'Neill, R-Maple Lake, is co-author of the bipartisan bill and said in a statement that "it is time now to pass these solutions so that no victim ever has to be denied justice over a technicality."

"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.

James Hanneman, another senior attorney with Hennepin's sexual assault initiative, echoed that sentiment, saying current law isn't hard enough on "reprehensible" behavior.

"We think that that language doesn't reflect what the community thinks is important in terms of protecting victims who are impaired," he said.

An attorney for Khalil declined to comment on the decision.

Andy Mannix • 612-673-4036