Blurred Lines of Consent Laws Leave Many Sexual Assault Victims Unprotected

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A ruling from the Minnesota Supreme Court over the weekend sparked outrage online, as many women saw the decision as the epitome of “victim blaming.”

The court reversed a lower-court decision to convict Francios Momolu Khalil of third-degree sexual criminal conduct for assaulting a woman who was drunk and considered “mentally incapacitated,” according to the opinion from the Minnesota Supreme Court.

The question in the appeal was not about what Momolu Khalil did, but about how the victim came to be intoxicated.

According to Minnesota state law, a person who is “mentally incapacitated” cannot give consent.

The state 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, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.”

Therefore, the court confirmed that the definition does not include people who decide to drink or take drugs themselves.

According to state codes, there are 28 other jurisdictions with similar laws that only protect victims who are involuntarily intoxicated. Nineteen states cover voluntary and involuntary intoxication, and four states that don’t mention intoxication at all.

Michal Buchhandler-Raphael, a law professor at Widener Commonwealth Law School, has written extensively about voluntary and involuntary intoxication laws.

In terms of statutory interpretation, Buchhandler-Raphael said the Minnesota court was right. However, she calls the facts of the case “egregious.”

According to trial testimony, Khalil met the woman after she was denied entry to a bar for being too drunk and invited her to a house party. When they arrived at the house, there was no party and the woman soon fell asleep on the couch and “blacked out.”

She testified that she later awoke to find Khalil raping her and said, “No, I don’t want to,” to which he replied, “But you’re so hot and you turn me on.” She lost consciousness and woke up the next morning “with her shorts around her ankles.” She later got a rape kit done and reported the incident to police.

Buchhandler-Raphael said Khalil “is no innocent person.”

“Just because you decided to intoxicate yourself doesn’t give others the license to take advantage of that vulnerable position,” she said.

This case highlights a reality that many state laws might not be doing enough to protect victims of sexual assault.

“No matter how you look at it, the situation is not covered under Minnesota law,” Buchhandler-Raphael said. “As a mother, it pains me to tell my daughters ‘you have to be careful. If you don’t protect yourself, the law will not protect you.

Victims of sexual harassment, sexual assault, sexual abuse and their supporters protest during a #MeToo march in Hollywood, California, on November 12, 2017.

Minnesota state Representative Kelly Moller is determined to change that. She has put forth legislation to amend the language of the mentally incapacitated law.

“The Supreme Court decision was certainly disappointing, but it didn’t come as a surprise to many of us who are involved in this line of work,” she said.

Cari Simon, a Title IX attorney with The Fierberg National Law Group, called the Minnesota involuntary intoxication law “a reflection of victim blaming that lives in the law.”

“It’s draw-dropping how out of touch [the law] is with the reality of what victims are facing,” Simon said. “[The law] is based on outdated, offensive and sexist beliefs about women being responsible for sexual assaults.”

According to The American Addiction Centers, about 20 to 25 percent of women will be sexually assaulted in college and at least half of student sexual assaults involve alcohol.

“I’ve done dozens of cases on campuses, and I’ve never seen a campus distinguish whether someone was drinking voluntarily or forced to drink alcohol,” Simon said.

Under the jurisdiction of state criminal law, Simon said victims are facing a “relic of the old system.”

Simon said that the way some consent laws are written—too narrow and too vague—creates a high, unclear standard for prosecution that does not reflect the reality of how sexual assaults happen and what victims experience.

The issue of not being the perfect victim does not only exist in the text of the legislation, but in the enforcement and prosecution, or lack thereof, of sexual assault cases.

Buchhandler-Raphael said the involuntary intoxication laws are “just the tip of the iceberg” when it comes to how the legal system under-protects victims.

“The law is worthless if it’s not enforced, and the law is worth nothing if the police do not seriously investigate the crime,” she said. “The law is worthless if the police do investigate the crime but the prosecution decides they’re not going to file rape charges because it’s too complicated.”

According to the Rape, Assault and Incest National Network (RAINN), less than one-quarter of rapes are reported to police. If the cases are prosecuted, only 0.5 percent result in a felony conviction and 0.46 percent result in incarceration.

Moller said she also worked with colleagues to pass a bill to test all rape kits and create standards for police investigation in sexual assault cases.

However, she acknowledged that many survivors don’t report their assaults to law enforcement, and she doesn’t want this court ruling to deter reporting.

“We want to make sure that those who do [report] have justice and that people who want to report know that they have the option for justice,” she said.

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