EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, March 27, 2021

Supreme Court of Minnesota Finds Sex With a Victim Who Has Blacked Out From Drinking is Not Criminal Sexual Conduct

Minn. Stat. § 609.341, subd. 7 states that

"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.

In turn, Minn. Stat. § 609.344, subd. 1(d) states that

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.

So, if a defendant engages in sexual penetration with another person who has voluntarily become intoxicated, does the defendant violate Minn. Stat. § 609.344, subd. 1(d)? That was the question addressed by the Supreme Court of Minnesota in its opinion this week in State v. Khalil, 2021 WL 1112444 (Minn. 2021).

In Khalil,

On the evening of May 13, 2017, J.S. consumed approximately five shots of vodka and one pill of a prescription narcotic. She then traveled to the Dinkytown neighborhood of Minneapolis with her friend S.L. Upon arriving, J.S. attempted to enter a local bar but was denied entry by the bouncer because she was intoxicated. Shortly thereafter, Khalil and two other men approached J.S. and S.L. outside the bar and invited them to a party. Khalil then drove the group to a house in North Minneapolis, arriving in the early morning hours of May 14, 2017. There was no party at the house.
S.Ltestified thatafter 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 eventually convicted of violating Minn. Stat. § 609.344, subd. 1(d), but appealed, claiming that J.S. was not mentally incapacitated because she voluntarily became intoxicated. The Supreme Court of Minnesota agreed and reversed Khalil's conviction, concluding that a person is mentally incapacitated because she is under the influence of alcohol only if the person is “under the influence of alcohol...administered to that person without the person's agreement.”

In a footnote, the court practically begged the Minnesota legislature to change this law, writing that

We are mindful of and concerned with the fact that, as the Minnesota County Attorneys Association points out in its amicus brief, 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. With this level of sexual violence, legislatures across the country have enacted statutes aimed at prioritizing consent and protecting intoxicated victims of rape and sexual assault, regardless of how the victim became intoxicated. See, e.g., Wash. Rev. Code § 9A.44.010 (defining “mental incapacity”-for the purpose of second-degree rape under Wash. Rev. Code § 9A.44.050-as a “condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause”). These statutory definitions protect intoxicated victims of rape regardless of how they became intoxicated. But today we undertake the task of interpreting the definition of “mentally incapacitated” that the Minnesota Legislature enacted in Minn. Stat. § 609.341, subd. 7 (2020).

And indeed, there is currently a bill, co-sponsored by Representative Kelly Moller, that would add language stating that a person is "mentally incapacitated" if

a person is under the influence of an intoxicating substance to a degree that renders them incapable of consenting or incapable of appreciating, understanding, or controlling the person's conduct.



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Khalil's conviction under Minnesota Statute 609.344 subd.1(d) should have been upheld as the statute clearly states: has reason to know that the complainant is mentally impaired, mentally incapacitated, "or physically helpless." [emphasis added]. The learned judges of the Minnesota Supreme Court clearly failed to read the 609.344, subd.1(d) and fully recognize the "or physically helpless" language as the lady was without question passed out and helpless. A rehearing need to be had on this.

Posted by: Hubert Brown | Apr 7, 2021 12:08:05 PM

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