On March 24, 2021, the Minnesota Supreme Court issued its decision in State v. Khalil, reversing and remanding a third-degree criminal sexual conduct charge that involved a mentally incapacitated or physically helpless complainant. Judging from the first line of the opinion, the Court knew its decision would be problematic: “This case arises from an experience no person should ever have to endure.”
It’s the sort of language courts use when they anticipate that the public is not going to like the result. Similarly, the fact that the Court spent four pages discussing qualifying phrases and comma placement in the criminal sexual conduct statute indicates to the legal community that what follows will be an unpopular opinion, and they wanted to articulate thoroughly the reasoning behind their decision.
The Court’s instinct was correct. As soon as this opinion was released, the Court’s acknowledgment of the victim’s experience and its extensive statutory interpretation did not matter. The response to the decision, both in traditional and social media, was explosive. And the overriding theme was that the Minnesota Supreme Court had condoned “drunk rape”—or worse, created a fresh loophole in the law to allow it.
Unfortunately, this response fundamentally mispresented the Court’s opinion in important and damaging ways. The Supreme Court’s decision was fairly straightforward: The district court improperly instructed the jury based on a clear misreading of the statute that unfairly prejudiced the defendant.
Reversal and remand of this case is undoubtedly a hardship for the victim, as well as the district court, which now must expend additional resources to retry the case. But it is not a loss for the public. Nor does it make it harder to prosecute sexual assault cases involving alcohol. (This is because the statute, as currently written, covers intoxicated sexual assault through a different criterion in the law, the “physically helpless” standard.)
Media coverage
The media coverage portrayed this decision as the Minnesota Supreme Court deciding that “drunk rape no longer exists.” The impression was left on the community that if you chose to drink alcohol, and someone sexually penetrated you without your consent, Minnesota law no longer considered this a crime. Among the headlines that appeared in local and national publications:
- “Felony rape charge doesn’t apply if victim got drunk on her own, Minnesota Supreme Court rules”1
- “Minnesota Supreme Court says rape victims too intoxicated to consent aren’t ‘incapacitated’”2
- “Minnesota Supreme Court throws out rape conviction because intoxicated woman willingly consumed alcohol”3
- “A Minnesota man can’t be charged with felony rape because the woman chose to drink beforehand, court rules”4
These headlines are taken from mainstream organizations such as the Star Tribune, USA
Today, and Washington Post. In many of these papers, the articles describe the implications of the opinion better than the headlines do. Journalists nonetheless wrote that “Minnesota is among a majority of states that treat intoxication as a barrier to consent only if victims became drunk against their will” (Washington Post)5 and “…the Supreme Court said Khalil could not be guilty of the sole charge he was convicted on because the woman did not fit the state’s legal description of being mentally incapacitated” (CNN).6
The mischaracterization of the Court’s opinion has far greater implications than the decision itself. Mainstream media coverage suggesting that “drunk rape” no longer exists in Minnesota quickly turned viral on social media. Some public reactions shared on Instagram, Facebook, and Twitter:
- “RAPE IS LEGAL WHEN VICTIM HAS GOTTEN DRUNK. Wait! What? Minnesota Supreme Court has ruled that a man who had sex with a woman while she was passed out on his couch cannot be guilty of rape because the victim got herself drunk beforehand.”7
- “In the latest—& likely most terrible—example of substance use shaming, now the Minnesota Supreme court has ruled that date rape is legal. Our society is sick…”8
- “Minnesota Supreme Court overturns a felony rape conviction because the woman voluntarily got intoxicated. So, in Minnesota, an intoxicated woman is fair game to rapists…because she asked for it.”9
- “Somehow missed the Minnesota Supreme Court legalizing the rape of drunk women.”10
Some of these posts went viral, having upwards of 100,000-300,000 likes or reposts.
What does the case actually say?
J.S., the victim in this case, became intoxicated after voluntarily drinking alcohol. Khalil, the defendant, invited her to accompany him to a party at his house. J.S. passed out and woke up to Khalil penetrating her vagina with his penis. Khalil was charged with third-degree criminal sexual conduct, among other charges, which prohibits sexual penetration with a mentally incapacitated or physically helpless complainant.
At trial, the jury instructions included the definition of both “physically helpless” and “mentally incapacitated.” The physically helpless standard is included in the third-degree criminal sexual conduct statute as an alternative to “mental incapacitation.” Physically helpless means that 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 non-consent. The statutory definition of “mentally incapacitated” requires the complainant to lack judgment to give reasoned consent to sexual penetration because drugs or alcohol have been administered without his or her agreement. The definition seems unambiguous: The alcohol or other substances must be consumed against the person’s agreement, or in other words, involuntarily.
But during deliberations, the jury asked the district court to clarify whether Khalil had to have administered the alcohol to J.S. without her agreement for her to qualify as mentally incapacitated. The judge improperly instructed that “you can be mentally incapacitated following consumption of alcohol that one administered to one’s self… or separately something else that’s administered without someone’s agreement.”
The jury found Khalil guilty of third-degree criminal sexual conduct. There is no way to know whether the jury based its decision on the improper definition of mental incapacitation, or if it found the victim was physically helpless at the time of the assault. The fact that the jury could have based its guilty verdict on an improper and material definition was enough to prompt the Minnesota Supreme Court to reverse and remand for a new trial.
The legal implications of the Minnesota Supreme Court’s decision do not reach beyond this case. The case will be remanded, and assuming the state opts not to dismiss the charges, Khalil has the right to a new trial. At that trial, the district court will presumably remedy its error based on the Supreme Court’s reversal and instruct the jury accordingly.
Other implications
Since this decision, there have been many calls for the Legislature to change the statute to include voluntary intoxication into the definition of “mental incapacitation.” It has been referred to as the “intoxication loophole” since Khalil came out.
As noted above, the statute as currently written covers intoxicated sexual assault through the “physically helpless” standard. The definition of physically helpless does not expressly include voluntary intoxication; in practice, however, “drunk rape” cases are prosecuted under this definition because the complainant is frequently asleep or not conscious, or they are unable to communicate nonconsent because of their level of intoxication. Like almost all statutes, and certainly all criminal law statutes, the criminal sexual conduct statutes could be improved. But Khalil did not create an “intoxication loophole.”
The improper coverage of this decision has another disturbing side effect—discouraging victims of sexual assault from reporting to the police if they were voluntarily intoxicated at the time of the assault. Following an assault, a social media user who had seen the Khalil commentary might well believe that “drunk rape” no longer exists in Minnesota. Then, with a simple Google search, their beliefs would be confirmed by Star Tribune and CNN headlines supporting that proposition. No one should be required to have a law degree or to read the entire opinion to understand the limited scope of this case. Headlines intended to grab your attention or cause panic will have unintended consequences for the victims of sexual assault.
HANNAH MARTIN is a criminal defense attorney at Caplan & Tamburino Law Firm.
Notes
1 https://www.twincities.com/2021/03/24/felony-rape-charge-doesnt-apply-if-victim-got-herself-drunk-supreme-court-rules/
2 https://www.startribune.com/minnesota-supreme-court-says-rape-victims-too-intoxicated-to-consent-aren-t-incapacitated/600038050/
3 https://www.usatoday.com/story/news/politics/2021/03/27/minnesota-supreme-court-drunk-rape-victim-not-incapacitated/7027981002/
4 https://www.washingtonpost.com/national-security/2021/03/26/minnesota-rape-alcohol/
5 https://www.washingtonpost.com/national-security/2021/03/26/minnesota-rape-alcohol/
6 https://www.cnn.com/2021/03/30/us/minnesota-rape-conviction-overturned/index.html
7 @BombshellDAILY (Twitter)
8 @RyanMarino (Twitter)
9 @RTMcFadyen (Twitter)
10 @WFKARS (Twitter)