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Minnesota Supreme Court’s recent unanimous decision to overturn the sexual assault conviction of a man found guilty of raping an unconscious woman exposed a loophole in state law and has major implications moving forward.

The case turned on whether a voluntarily intoxicated person was mentally incapacitated under the law. In the opinion, Justice Paul Thissen found that the lower court made a reversible error in jury instructions. At trial, the judge instructed the jury that mentally incapacitated included a person who was voluntarily intoxicated.

But Thissen pointed to the actual language of Minn. Stat. § 609.341(7), which defines mentally incapacitated as “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.”

Thissen determined that because the perpetrator did not get the victim intoxicated without her knowledge, the jury instruction was improper as given.

Thissen suggested the legislature should revise the law. In an interview with Minnesota Public Radio, Lindsay Brice, law and policy director for the Minnesota Coalition Against Sexual Assault, said the statute is a problem.

“It makes it very clear that this issue needs to be fixed at the Legislature,” Brice said.

A jury convicted Francois Khalil in 2019 of third-degree criminal sexual conduct involving an impaired person. Khalil met an intoxicated woman after she was refused entry into a bar.

Only mentioned by her initials, Thissen recounted the woman’s testimony of passing out and waking up to find Khalil trying to penetrate her.

Thissen explained that prosecutors declined to charge Khalil with a lesser charge that criminalizes non-consensual sexual contact. He noted Khalil conceded that charge would have applied. But it was only a gross misdemeanor instead of a felony.

Democratic state Rep. Kelly Moller called for a closing of the intoxication loophole. She introduced a bill to amend the statute. An assistant Hennepin County attorney, Moller pointed to the law as a needed tool for prosecutors.

“This is something that will make a difference for those who do come forward and have these sets of circumstances, that their cases will at least be chargeable,” Moller told Minnesota Public Radio.

In February, a working group issued a report exploring gaps in the state’s sexual assault law, pointed out the gap in who is considered mentally incapacitated. According to the Star Tribune, the working group was convened after an investigative series by the outlet exploring the lack of justice for sexual assault victims in the state.

The Star Tribune reported that the current definition of mentally incapacitated, excluding people who are voluntarily intoxicated, makes it difficult to prosecute cases.

The working group also suggested making sexual extortion a crime, which Moller’s proposed legislation includes.

Anoa Changa is a movement journalist and retired attorney based in Atlanta, Georgia. Follow Anoa on Instagram and Twitter @thewaywithanoa.

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