The Journey of Sexual Assault Legislation: Part 1 of 2

Rep. Kelly Moller is one of the women moving conversation forward around sexual assault legislation.

Public Attention to a Court Ruling

When the Minnesota Supreme Court overturned the conviction of Francios Momolu Khalil in March, it brought national attention — such as a Washington Post article — to a Minnesota statute (609.341) that requires that a victim of rape must be involuntarily intoxicated in order to be considered “mentally incapacitated.”

The Khalil case said that, because the victim consumed alcohol willingly and became intoxicated, she was not mentally incapacitated by statute definition. Khalil was not guilty of rape because of this technicality.

As reported by Law & Crime, Judge Paul Thissen explained in his opinion for the ruling what the statute says: “’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.”

Thissen continued: “We are mindful of and concerned with the fact that 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.” Thissen noted, “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.”

The Minnesota statute wording, on the other hand, Thissen added, is “what Minnesota lawmakers had intended.” This was a result of recent legislation that the judge detailed in a lengthy footnote. The statute was reconsidered over the past few years, when lawmakers heard testimony and chose to retain the voluntary/ involuntary distinction, thereby allowing for the result that a rapist would escape conviction on the grounds that the victim had consumed alcohol on their own.

New Pressure

The attention this requirement for rape brought to Minnesota law finally led to a hearing in the Senate Judiciary Committee. Although the working group had written many recommendations in the Senate bill, initially the committee, chaired by Sen. Warren Limmer (Maple Grove), intended to only discuss the language around intoxication.

However, Sen. Ron Latz (St. Louis Park) — who had learned more about sexual assault from survivors in 2019 — pushed back, saying that the legislation was already drafted, committee members had been aware of it for weeks, the work had already been vetted by prosecutors and defense attorneys during the process, so the committee should be able to consider the entire bill.

Line by line, the committee was led through an explanation of the language in the bill. Some language was not changed — interestingly, such as penalizing women differently than men for adultery and premarital sex, and criminalizing sodomy — but largely it passed the committee with minor tweaks.

Currently the legislation is waiting to be attached, most likely, to a Senate omnibus bill before the current legislative session ends in May.

Moving, and Stalling, in the Legislature

The recommendations were put into legislative bills that a core group of people have been working into conversations with House and Senate legislators. Rep. Kelly Moller (D-Shoreview) and Rep. Marion O’Neill (R-Buffalo) co-authored HF707, which among other things created a new crime of sexual extortion. The related Senate bill SF1683 was authored by Sen. David Senjem (R-Rochester).

Despite the bipartisan effort, the process stalled in the Senate — it simply was not prioritized for a hearing in the judiciary committee.

As one of the attorneys in the core group told us:

“We need to change cultural norms. We still live in a patriarchy. No one is saying this legislation will solve everything. But we are not set up to protect the vulnerable from the powerful. Currently we do more to protect the powerful, money, status. This would be part of a shift that says we want [our institutions] to center the protection of the vulnerable.”

Action Steps

  1. Contact your representatives about what you would like them to do around sexual assault legislation.
  2. We will be talking to some of the core women who have been behind the movement of this legislation in a virtual forum. If this forum interests you, please register here.

Getting to Bill Status

  1. In 2018, the Star Tribune published a 9-part Denied Justice series about statewide failures to address sexual violence.
  2. The Minnesota legislature convened a working group to make suggestions to revise the criminal sexual conduct statutes. 
  3. A large group was involved in listening sessions, finding people to share insights, from survivors to prosecutors and defense attorneys.
  4. Subcommittees of about 10-15 people met frequently to hammer out detailed language recommendations.
  5. The report was compiled by the Department of Public Safety.
  6. The larger group reviewed and approved the final report, detailing specific recommendations around language, archaic statutes, and more.

Recommendations in short from the work group report:

  • Modify the definitions of “coercion” and “significant relationship.”
  • Address cases involving complainants/victims who are voluntarily intoxicated.
  • Create a crime of “sexual extortion.”
  • Create a felony-level penetration CSC fifth-degree offense.
  • Address the problem of overlapping definitions of “force,” “bodily harm” and “personal injury” and its impact on CSC first- and CSC third-degree cases.
  • Modify the age-related offenses to increase the age of the child for the most serious cases, provide consistency in age differentials, and shorten the time frame for when mistake of age defense is available.
  • Move the list of prohibited occupational relationships into the definitions section and clarify provisions.
  • Provide a short-term and long-term plan for restructuring the statutory scheme.