On March 24, 2021, many Minnesotans were shocked to learn that state law does not punish the sexual violation of a victim who became intoxicated by drinking voluntarily. The Minnesota Supreme Court, in State v. Khalil, determined that the criminal-sexual-conduct statute applies only if the intoxicant was administered without the victim’s agreement. They overturned Mr. Khalil’s conviction and started a firestorm among members of the public and the media.
But this result was no surprise to many who work within criminal legal systems. It confirmed what survivors, advocates, and prosecutors have complained about for a long time: the statute leaves a gap for those victims who used an intoxicating substance intentionally to the point of extreme intoxication, but not to the point of being all but unconscious – “physically helpless” – by legal definition. This gap and many others were the subject of an 18-month effort by numerous stakeholders, resulting in two legislative bills currently on the table. The Advocates’ staff attorney, Kaarin Long, was among those stakeholders.
Among the many important provisions in these bills are these:
· A “voluntarily intoxicated” provision to punish those who knew or should have known that the other person was too intoxicated to give consent to sexual conduct
· A sexual extortion provision to punish using blackmail-like threats to compel unwanted sexual conduct – such as threats to the victim’s housing or employment, to share private sexual images, or to report the victim to immigration authorities
· A provision to clarify that educators and their staff are prohibited by their professional jobs from sexual conduct with high-school students, even if they are not directly in a position of authority over the student, as provided in current statute
· A low-level felony offense for sexual penetration without consent, even absent proof of force or intoxication, to emphasize that sexual penetration requires affirmative consent
· A provision protecting thirteen-year-olds as the children that they are instead of grouping them with older teenagers under the law regarding sexual conduct
· A provision that caps at five years the age-range within which a person can claim they made a “mistake of age” regarding sexual conduct with a 14- or 15-year-old, replacing the current ten-year cap on the “mistake of age” defense
These provisions are based on the experiences of survivors and those who wished to seek justice for them, but could not do so based on current law.
The House Bill (HF707) has passed its House committees, and the Senate Bill (SF1683), is proceeding through Senate committees now. Although the language in the bills has been vetted by a wide and diverse array of professionals and survivors, there is no guarantee that the Senate will pass the language so that it can become law. Our call to action: please contact your senator and ask that they encourage GOP Senate leadership to pass the entire bill, not solely the intoxication provision. Let’s not wait any longer to create accountability for the harm of sexual violence.
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