ST. PAUL -- The state Supreme Court on Wednesday, March 24, overturned a Maple Grove, Minn., man’s felony conviction for sexual assault because the victim got herself drunk before the incident.
Francios Khalil, then 20, picked up an intoxicated woman outside a Dinkytown bar in 2017, took her back to a North Minneapolis home and had sex with her after she passed out on a couch, according to court records. A Hennepin County jury in 2019 convicted him of third-degree criminal sexual conduct.
Khalil’s attorney argued the felony charge does not apply because that statute is for cases in which the victim had drugs or alcohol administered to her without her agreement.
A divided Court of Appeals affirmed Khalil’s conviction, but the Supreme Court disagreed, overturning the conviction and granting Khalil a new trial.
Justice Paul Thissen wrote that the prosecution’s interpretation of third-degree assault “unreasonably strains and stretches the plain text of the statute.”
The relevant section of third-degree sexual conduct applies to cases where the victim is “mentally incapacitated” due to drugs or alcohol that was “administered to that person without the person’s agreement.”
Thissen wrote that the Legislature clearly intended to limit the statute to situations where the victim did not voluntarily drink to intoxication. Rather, it’s for situations where the victim was “given alcohol surreptitiously (for example, when someone ‘spikes’ a punch bowl at a party),” he wrote.
Thissen acknowledged that a “commonsense understanding” of mentally incapacitated could include someone who drank voluntarily yet “cannot exercise judgment sufficiently to express consent” to sex. But that’s not how the statute was written.
In Khalil’s case, his accuser had swallowed one pill of a prescription drug and five shots of vodka before a Dinkytown bouncer refused to let her into the bar.
Thissen wrote that attorneys for both sides agree the facts of the case constitute a crime, but a less serious one: fifth-degree criminal sexual conduct, a gross misdemeanor, which carries lighter penalties. Prosecutors did not try Khalil on that charge but now could look to recharge him.
Thissen noted in his opinion that the Legislature has taken a recent interest in the statute.
In 2019, some lawmakers sought to expand the definition of the felony crime to include situations in which the victim voluntarily drank so much that she could not give consent. Instead, the Legislature created a working group to recommend changes.
A bill is advancing through the House that would add language to the third-degree statute, making it a felony to have sex with someone who is too intoxicated to consent, no matter how they got that way.
Chief sponsor Rep. Kelly Moller, DFL-Shoreview, issued a statement Wednesday urging the bill’s passage.
“Victims who are intoxicated to the degree that they are unable to give consent are entitled to justice. Our laws must clearly reflect that understanding, and today’s Supreme Court ruling highlights the urgency lawmakers have to close this and other loopholes throughout our (criminal sexual conduct) law,” she said.