By Remy Bell*

Background

On March 24, 2021, the Minnesota Supreme Court reversed and remanded a felonious sexual assault conviction and, as a result, the defendant was able to accept a plea bargain, serving only one year in prison.^[1] This ruling shined a spotlight on a loophole in Minnesota’s sexual assault statutes that made it easier for defendants to escape felony charges if the victim was voluntarily intoxicated.

Facts and Procedural History

Twenty-year-old J.S. voluntarily ingested a prescription narcotic and several alcoholic drinks before arriving with her friend to a downtown Minneapolis bar.^[2] J.S. was rejected from entering the bar due to her intoxication level and because she was under the legal drinking age.^[3] After being turned away, the defendant, Khalil, and two others invited and offered to drive J.S. and her friend to what they referred to as a “house party;” however, upon arrival at the home, it was evident that no party existed.^[4] After the group went inside, J.S. fell asleep and was “in and out of consciousness.”^[5] J.S. was later awakened to Khalil sexually penetrating her.^[6] Khalil continued to sexually assault J.S. even after she stated that she did not want to have intercourse with him.^[7]

Khalil was charged with the felony of “third-degree criminal sexual conduct involving a mentally incapacitated or physically helpless complainant” under Minnesota Statute §609.344, subdivision 1(b).^[8] Per the statute, a defendant is guilty if they had sexual intercourse with the complainant and “knew or had reason to know” that the complainant was mentally incapacitated.^[9]

At trial, the jury questioned whether the drugs and alcohol in J.S.’s system had to have been involuntarily ingested for her to meet the definition of “mentally incapacitated.”^[10] The trial court answered in the negative.^[11] Accordingly, the jury found Khalil guilty, and he later appealed, arguing that the jury instructions provided by the district court were incorrect.^[12] The court of appeals affirmed the trial court’s conviction, and Khalil appealed again to the Minnesota Supreme Court.^[13]

Holding

On appeal, the Minnesota Supreme Court was tasked with deciding whether an individual under the influence of drugs and alcohol is considered to be mentally incapacitated if the substances were ingested voluntarily.^[14] The Court explained that the answer must come from the plain language of the statute and highlighted the importance of its textual structure.^[15] Minnesota Statute §609.341, subdivision 7, 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.”^[16]

The Court reasoned that the placement of the comma before the word “administered” indicated the legislature intended for the statute to apply only in circumstances where substances are involuntarily ingested by the complainant.^[17] Because J.S. was voluntarily intoxicated, the Court determined that the instructions provided to the jury were incorrect.^[18] Thus, Khalil’s conviction was reversed, and the case was remanded for a new trial.^[19]

Instead of proceeding with a new trial, Khalil pled guilty to fifth-degree criminal sexual conduct, which is a gross misdemeanor.^[20] Ultimately, he ended up serving only one year in prison rather than the fifteen years he faced with his original felony charge.^[21]

The Need for Amendment

Overall, conviction rates for sexual assault are very low. Prosecutors often do not press charges unless they are confident that a case will lead to a conviction.^[22] Of the small number of sexual assault cases that are actually prosecuted, only seven in 1,000 will result in a felony conviction.^[23] This injustice is exacerbated when state laws fail to provide equal protection to all victims of sexual assault.

Matters become even more complicated in cases involving voluntary intoxication. Whether drugs and alcohol are ingested voluntarily or involuntarily does not change the fact that these substances impact an individual’s ability to consent to intercourse.^[24] It logically follows that state laws should be drafted with language that is inclusive of all victims who were intoxicated during a sexual assault. However, at the time of State v. Khalil, the Minnesota statute made it challenging for prosecutors to successfully bring felony charges in cases where victims of sexual assault were voluntarily intoxicated unless there was also evidence of mental impairment or physical helplessness.^[25] Therefore, prosecutors could feel limited to bringing gross misdemeanor charges, which have lighter sentencing guidelines than felony charges.^[26]

Conclusion

The Minnesota Supreme Court ruling in State v. Khalil caused public outrage across the nation.[27] Pressure was placed on the state legislature to broaden the definition of “mentally incapacitated” to provide protection for sexual assault victims who were voluntarily under the influence of drugs and alcohol.[28] On September 15, 2021, §609.341, subdivision 7 was amended to include individuals “under the influence of any substance or substances” and remove the previous requirement that substances had to have been involuntarily administered in order for a victim to be considered mentally incapacitated.^[29]

While the amendment may not change the grave injustice that J.S. suffered in her case, it does make it less difficult for prosecutors to bring felony charges against perpetrators in cases where intoxicating substances were voluntarily consumed by the victim. It also helps to combat the gross misconception, fueled by centuries of unjust rape law, that the actions of sexual assault victims somehow contribute to the likelihood of an assault.^[30] Moreover, the amendment further validates that a victim’s choice to voluntarily consume intoxicating substances should not factor into the determination of a defendant’s guilt in sexual assault cases.[31]

* JLI Staff Member, University of Minnesota Law School J.D. Candidate – Class of 2024

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[1] Sarah McCathey Morton, Injustice by Design: Voluntary Intoxication in American Sexual Assault Legislation (2022) (B.A. thesis, Columbia University) (on file with Columbia University Libraries) https://doi.org/10.7916/sr0d-6s66.

[2] State v. Khalil, 948 N.W. 2d 156, 159 (Minn. App. 2020).

[3] Id.

[4] Id.

[5] Michal Buchhandler-Raphael, The Scope and Limits of the Criminal Regulation of Sexuality, 40 Crim. Just. Ethics 164, 172 (2021), https://ssrn.com/abstract=3912122.

[6] Id. at 173.

[7] Id.

[8] State v. Khalil, 956 N.W.2d 627, 630 (2021).

[9] Id. at 631; see also Minn. Stat. section 609.344, subd. 1(b) (2020).

[10] Khalil, 956 N.W.2d at 631.

[11] Id.

[12] Id.

[13] Khalil, 956 N.W.2d at 631.

[14] McCathey Morton, supra note 1, at 3.

[15] Khalil, 956 N.W.2d at 634.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 642.

[20] McCathey Morton, supra note 1.

[21] Id.

[22] What to Expect from the Criminal Justice System, Rainn, https://www.rainn.org/articles/what-expect-criminal-justice-system (last visited Jan. 5, 2023).

[23] Id.

[24] McCathey Morton, supra note 1, at 5.

[25] Id. at 4; see also Minn. Stat. section 609.344, subd. 1(b) (2020).

[26] Id.

[27] McCathey Morton, supra note 1, at 30.

[28] Id. at 28; see also Minn. Stat. section 609.341, subd. 7.

[29] Minn. Stat. section 609.341, subd. 7(2) (2021).

[30] McCathey Morton, supra note 1, at 15; Stephanie Lynge, “Real Rape”: Bias That Allows Violent Offenders to Escape Real Accountability, 52 Cumb. L. Rev. 569 (2022).

[31] McCathey Morton, supra note 1, at 20.