MN Supreme Court: It's Not Rape If Unconscious Woman Drank Voluntarily
Today in "What the — how is this even a thing?" The Minnesota Supreme Court has granted a retrial for a man convicted of raping an unconscious woman because her own actions — drinking and taking a prescription narcotic — were what led to her being unconscious. Minnesota's state constitution, they say, does not consider victims "mentally incapacitated" if they are voluntarily inebriated. It only counts if they are forced to get drunk or take pills against their will.
According to court documents, in May 2017, a woman identified only by the initials J.S. "was intoxicated after drinking alcohol and taking a prescription narcotic." She and a friend were denied entry into a bar due to how intoxicated they were, at which point they were approached by one Francios Momolu Khalil, who invited them to come to a party with him. There was, however, no party — just Khalil's own house. J.S. passed out on his couch and woke up to find him raping her. Or, as those court documents put it, "penetrating her vagina with his penis."
The documents also state
S.L. testified that, after walking into the house, J.S. immediately laid down on the living room couch and soon fell asleep. J.S. testified that she "blacked out" due to her intoxication shortly after arriving at the house and did not clearly remember lying down on the couch. J.S. woke up some time later to find Khalil penetrating her vagina with his penis. She said, "No, I don't want to," to which he replied, "But you're so hot and you turn me on." J.S. then lost consciousness and woke up at some point between 7 and 8 a.m. with her shorts around her ankles. She retrieved S.L. from another room and the two called a Lyft and left the house. During the ride, J.S. told S.L. that she had been raped. Later that day, J.S. went to Regions Hospital in St. Paul to have a rape kit done.
Khalil was initially sentenced to five years in prison for "third-degree criminal sexual conduct involving a mentally incapacitated or physically helpless complainant," but his conviction has now been overturned and he has been granted a new trial, with the Minnesota Supreme Court determining that it wasn't "rape" because the victim took the pill and drank the alcohol on her own and was not forced to ingest them by Khalil. In a unanimous decision authored by Justice Paul Thissen, which gets heavily into the grammatical construct of the statute, the court ruled that this was the valid interpretation of the law as written, and that they could not change it even if they wanted to. That, Thissen explained, must be left to the legislature.
Now, one would think that "being unconscious" and saying "no" would be enough for any reasonable person to determine that a rape occurred. It shouldn't really matter why she was unconscious, because an unconscious person cannot consent to sex, or anything for that matter. If she were sober, but just happened to be a really deep sleeper and woke up to this guy raping her, she would also have been "mentally incapacitated" when he started raping her. In fact, it is quite difficult to think of anything that would qualify more as "mentally incapacitated" than "not conscious."
So what does the actual law say? Let's take a look! According to 2020 Minnesota statutes, criminal sexual conduct in the third degree includes circumstances in which:
the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless;
It seems as though, if someone is passed out on the couch, it would be very difficult to not know that they are mentally incapacitated. Or physically helpless, which is defined in Minnesota law 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 actor.
And sure, one could argue that the grammatical structure of the definition of "mentally incapacitated" refers only to people who are given drugs or alcohol against their will, if one wants to litigate the difference between commas and semi-colons. But this is hardly Eats Shoots & Leaves.
"Mentally incapacitated" means 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.
But it's sure hard to argue that not being conscious would not meet the definition of "asleep or not conscious," which meets the definition of "physically helpless."
Justice Thissen explains that it must be up to the legislature, not the court, to fix this loophole — and indeed, DFL Rep. Kelly Moller of Shoreview is trying to pass legislation to make the language here more clear. According to sexual assault survivors advocacy groups in the state, it's a major loophole in the state's law that has previously been used to claim sexual assaults were "technically legal."
Abby Honold, a sexual assault survivor and advocate, says this intoxication loophole has been a problem for years. She says it's a roadblock for survivors seeking to press charges who have an otherwise solid case.
"There are a lot of people who are told when they report now, and when their case is referred to a prosecutor that essentially their sexual assault was technically legal. It's always so heartbreaking to have to hear that from yet another survivor who came forward and reported," Honold said.
Rewording the definition to make this more clear is a great idea and obviously necessary. However, interpreting the law this way in this circumstance is ridiculous, because there is absolutely nothing in the law stating that the victim had to be forced to drink or take drugs in order to be rendered "physically helpless."
If one were to assume that the Minnesota Supreme Court were correct in their interpretation of this law, one would also have to assume that it is legal to rape any sleeping person in the whole of Minnesota, so long as the rapist did not give them any intoxicating substances, which, really, just does not seem like a thing that is true.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse