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Controversial MN Supreme Court ruling fuels legislative change to protect sexual assault survivors

With student support, the Minnesota Legislature is working to close the “intoxication loophole.”
Image by Tony Saunders
The Minnesota State Capitol on Nov. 18, 2018.

Editor’s note: This article discusses sexual assault. If you or anyone you know has experienced sexual assault, the Aurora Center’s 24-hour helpline can be reached at (612) 626-9111.

For many, a Minnesota Supreme Court ruling on March 24 that said sexual assault victims who are voluntarily intoxicated are not considered “mentally incapacitated” was a shocking announcement — but Abby Honold was not surprised.

The sexual assault advocate and University of Minnesota alum said this ruling comes from an outdated statute that misunderstands the true circumstances of sexual assault. Lawmakers and community members are working to change that as a bill has been working its way through the Legislature since the beginning of the session.

Minnesota law defines “mentally incapacitated” in sexual assault cases as a person who has come under the influence of a substance without their consent. It notes that the persn lacks the judgment to give consent to sex.

The Supreme Court’s ruling solidified this definition, which dates back to the 1880s, when women were considered property.

This statute, often referred to as the “intoxication loophole,” has closed doors for victim-survivors who were intoxicated at the time of their assault and stopped some from getting justice, Honold said.

“You should be able to drink and not have to worry about sexual assault,” Honold said. “You should just be worrying about a hangover.”

State of Minnesota v. Francios Momolu Khalil

After the court of appeals ruled that Francios Momolu Khalil was guilty of third-degree criminal sexual conduct for sexual assault against an intoxicated woman, the Minnesota Supreme Court reversed that decision.

The court interpreted the statute as saying that a person is only mentally incapacitated if someone administered the substance involuntarily; it does not apply if they gave the substance to themselves. The victim-survivor was voluntarily under the influence before meeting Khalil.

Judge Paul Thissen wrote that although this decision may not be fair to the victim, it is not the court’s job to change the law but rather interpret it.

In his decision, Thissen wrote, “legislative bodies are institutionally better positioned than courts to sort out conflicting interests and information surrounding complex public policy issues … we apply that meaning and not what we may wish the law was or what we think the law should be.”

A bill, HF 707, was already moving its way through the legislature when Thissen issued the opinion. After the ruling, state lawmakers launched a massive bipartisan effort to address the language. Legislators packed bills with so many signatures that they had to create clone bills to fit more names.

“I’m so appreciative of those survivors who can keep sharing their traumatic experiences,” said Rep. Kelly Moller, DFL-Shoreview, chief author of the bill. “They know that it can’t make a difference in their cases, but they do it because they don’t want the same thing to happen to somebody else.”

Closing the intoxication loophole

When Moller heard about the Supreme Court’s decision, she, like Honold, said she was disappointed — but not surprised.

Moller said she has been working since the start of her career at the Legislature in 2018 to protect more victim-survivors from loopholes like this.

Moller and her colleague, Rep. Marion O’Neill, R-Maple Lake, created a working group in 2019 that includes organizations like the University’s Aurora Center for Advocacy and Education. The group recommended three major changes for sexual assault victims in Minnesota: protections for 13-year-olds typically exempt from child protections, creating a new crime called “sexual extortion” and closing the intoxication loophole.

Most child protections are only extended up to 12-year-old victims, Moller said. The group wants to increase that age limit by a year.

The bill also seeks to create a new crime entitled “sexual extortion.” The workgroup found situations where renters or employees were asked for sexual acts in exchange for rent or work alleviation. The law would make this illegal.

Katie Eichele, director of the Aurora Center, said the swell of public attention to the state Supreme Court case is an “anomaly.” For every 1,000 sexual assaults, fewer than 1% of perpetrators are convicted, according to the Rape, Abuse & Incest National Network.

The center has been working with nonprofit organizations over the past several years to highlight the flaws in the current sexual misconduct statute.

“It’s just that we now have an actual case to bring attention to the issue on how flawed it is,” Eichele said. “We have the attention of the Legislature and the public to be able to have momentum to move it forward.”

Moller added that there are other means for victim-survivors to bring charges against their rapist, such as instances of force, perversion and use of a weapon.

“If anybody’s … thinking, ‘I don’t want to come forward, because I was at a party and I was drunk, and this happened to me,’ they still should think about reporting it,” Moller said. “I think there is sort of this mistaken assumption that no voluntarily intoxicated victims can ever get justice.”

If the bill passes, it would come into effect on Aug. 1 and only apply to cases that happened after that date.

Fixing the system that failed her

Honold was assaulted during her first year as a student at the University. She was intoxicated at the time of her assault.

Since coming forward to the public in 2016 about her experience, Honold has devoted her time to advocacy work to push for more protections for victims and create a support network for victim-survivors.

“There’s a lot of pain that I had to go through to get my case charged,” Honold said. “I remember what it was like to go through that, basically alone, and I don’t ever want anybody else to have to deal with that.”

Although the intoxication loophole did not impact Honold’s case, she said she believes the statute represents an overarching issue of victim-blaming culture.

“I worry that it will prevent survivors from coming forward and reporting, that it will make them think that there is no route forward,” Honold said. “I don’t want people to feel hopeless. I want people to feel inspired to help fight to change this law because we’re really so close.”

Honold said that although the court’s ruling in favor of Khalil can be triggering to hear in the news, the outcome was not the court’s fault.

“They basically were pointing out an issue that already exists,” Honold said. “They could have ignored the case, they could have dismissed it and chose not to hear it, but they chose to make a really strong statement.”

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