‘Intoxication loophole’ leads to controversial decision in Minnesota courts

A person who is sexually assaulted while intoxicated is no longer considered "mentally incapacitated" if they voluntarily consumed alcohol or drugs prior to the assault.
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ST. PAUL, Minn. (KSTP) — What is being called the ‘intoxication loophole’ has led to a controversial decision out of the Minnesota Supreme Court. The court has ruled that a person who is sexually assaulted while intoxicated is no longer considered “mentally incapacitated” if they voluntarily consumed alcohol or drugs prior to the assault.

A 2017 sexual assault case was granted a new trial Wednesday, Mar. 24. According to court documents, Francois Momulu Khalil was originally convicted of third-degree sexual assault after he brought a woman to his north Minneapolis home and raped her. The woman was refused entry to a Dinkytown bar for being too intoxicated that night. The complaint states Khalil had offered to take her to a party but instead brought her to his residence.

According to Minnesota law, third-degree sexual assault is defined as:

“A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:(d) the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.”

In addition, “physically helpless” defines as “a person is (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.”

During Wednesday’s trial, Justice Paul Thissen claimed the lower court’s definition of mentally incapacitated in this case “unreasonably strains and stretches the plain text of the statute” because the victim was intoxicated before she met Khalil.

“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,” Thissen stated.

Because of this technicality, Khalil’s case was overturned.

Rep. Kelly Moller has been pushing to reform the language in Minnesota’s criminal sexual conduct statute to close the ‘intoxication loophole’ among other issues.

“Victims who are intoxicated to the degree that they are unable to give consent are entitled to justice. 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 CSC law,” Moller said. “Prosecutors, survivors, and advocates have identified the problem and the CSC Working Group did incredibly tough work to identify the solutions. Minnesotans who experience unthinkable trauma deserve to see the Legislature take action on this immediately.”

Moller told our ABC affiliates, 5 Eyewitness News, that she is thankful this controversial decision was made while the legislature is still in session.

“We still have time to get this bill passed this year,” Moller said. “Our current law doesn’t really give prosecutors the tools that they need to prosecute these cases where we have people who are preying on victims who are intoxicated and then sexually assaulting them.”

The House Public Safety Committee approved Moller’s legislation on Feb. 18 and the House Judiciary and Civil Law Committee approved it on March 11. The bipartisan bill has not received a committee hearing in the Senate.

Rep. Marion O’Neil, co-author of Moller’s bill, added the following statement on the Supreme Court decision:

“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… It is time now to pass these solutions so that no victim ever has to be denied justice over a technicality.”

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