J.S. woke up on a stranger’s couch with her shorts around her ankles. The 20-year-old had been raped while intoxicated after leaving a Minnesota bar with a man who drove her to his home instead of to a supposed party that didn’t exist. She passed out on the living room couch but briefly awoke during the assault before losing consciousness again until morning, according to court documents. “No, I don’t want to,” she reported saying to Francois Khalil, also 20. He replied, “But you’re so hot and you turn me on.”
Two days later J.S. went to Regions Hospital in St. Paul to have a rape kit exam. The same day she bravely reported the incident to Minneapolis police. Upon investigation a Minnesota district court charged Khalil with 3rd-degree felony rape and packed him off to prison. The jury, as instructed by the court in what is being called a “reversible error,” based its decision on the commonsense understanding of a Minnesota statute stating J.S. was “mentally incapacitated”—she was intoxicated (no matter how) during the incident and so lacked judgment to consent.
Four years have passed since the attack and the ruling was just toppled. Amid growing outrage from women’s rights groups and sexual assault survivors, the appellate court decision was overturned in late March on appeal by Minnesota’s Supreme Court, whose justices (half of them women) unanimously re-interpreted “mentally incapacitated” to mean only forced intoxication by an assailant.
According to the revised definition, mentally incapacitated only covers a sexual assault victim’s impaired judgment from alcohol, narcotics or other substances if “administered” by someone else without the victim’s agreement.
Known as the intoxication loophole, the ruling casts more blame on the victim’s behavior and less on the rapist’s. Khalil has been granted a new trial date and is soon to be released from prison where he began a longer sentence after conviction in 2019. He could still be charged if retried, but his crime will likely be reduced from 3rd-degree felony to 5th-degree gross misdemeanor.
J.S. drank five vodka shots and took a prescription narcotic of her own free will before first encountering Khalil in front of a local Minnesota bar where a bouncer refused to let her in because she was visibly intoxicated.
Instead of focusing on criminal violence, the reversal implies Khalil is somehow less guilty because it can’t be proven he was aware J.S. drank alcohol voluntarily before they met. It diminishes the fact that he forcibly raped her when she was blacked out on his couch. By default, more blame is cast on J.S. who chose to drink alcohol beforehand. Protesters across the country note the intoxication loophole’s broad implications since about 40 states have decades-old sexual assault laws with similar language. However ludicrous, the majority of these states do not outright prohibit unwanted sex if the victim is voluntarily intoxicated.
To be fair, Minnesota supreme justices say they lament the decision but feel their hands were tied because of the way the statute is worded, i.e., substance abuse in a sex assault case must be administered to a victim by a stronger person, forcibly. “If the legislature’s intended meaning is clear from the text of the statute, we apply that meaning and not what we may wish the law was or what we think the law should be, Justice Paul Thissen wrote. “In Khalil’s case, no one disputes that the woman chose to become drunk.”
The woman. Right.
So, ultimately it becomes a problem for lawmakers, not the court system. Legislators on both sides have discussed Minnesota’s outdated sexual assault statutes for years but the MN Senate’s latest push to amend them is in direct response to the overturned ruling in Francois Khalil’s rape conviction. Bottom line: J.S. was not mentally incapacitated, despite being drunk to the point of oblivion, since it was her own decision to consume alcohol earlier that night.
“This case arises from an experience no person should ever have to endure,” Thissen also wrote. But Minnesota sex assault laws, among others, are old and weak. As it stands now, the definition of mentally incapacitated does not protect victims who decide for themselves to drink or take drugs—despite roughly half of all US sexual assaults involving alcohol consumption, according to HHS (Department of Health and Human Services). It is yet another deterrent when victims brave speaking out.
If you have experienced sexual assault we want to hear from you. A Case for Women is a women-owned- and run organization dedicated to helping individuals get the justice and monetary compensation they rightfully deserve. Contact us by emailing us or filling out the form here. We are here for you.