ST. PAUL — When the Minnesota Legislature reconvenes Tuesday, April 6, after a 10-day Easter/Passover recess, lawmakers will be under mounting pressure to close a loophole in state law that allowed a rapist to escape a long prison sentence because his victim got herself drunk before the assault.
Language to close that intoxication loophole is included in a comprehensive bill to update the state’s criminal sexual conduct statute that is moving through the House.
A Minnesota Supreme Court ruling March 24 regarding a rape victim called attention to the need for legislators to act quickly, the bill’s chief sponsor, DFL Rep. Kelly Moller of Shoreview, said in an interview last week.
“Victims who are intoxicated to a degree that they are unable to give consent are entitled to justice,” Moller said in a statement after the court ruled.
The Supreme Court overturned the felony conviction of a Maple Grove man because the state’s third-degree criminal sexual conduct law says that a person who is sexually assaulted while intoxicated is not considered “mentally impaired” if she voluntarily drank alcohol. To meet that standard for impairment, the law requires the alcohol must be “administered to that person without the person’s agreement.”
Justice Paul Thissen wrote that while a “commonsense understanding of the term mentally incapacitated” could include someone who couldn’t give consent to sex because she was intoxicated, the law says the alcohol must have been given to her “involuntarily without her consent.”
Thissen virtually invited lawmakers to change the statute, writing that “legislative bodies are institutionally better positioned than courts to sort out conflicting interests and information surrounding complex public policy issues.”
Moller, a Hennepin County prosecutor, and Rep. Marion O’Neill, R-Maple Lake, had already introduced a bill to do that and update other sexual assault laws. It is a product of two years of study by a sex crime statutory reform working group created by the 2019 Legislature.
News of the court ruling generated front-page newspaper headlines and led radio and TV newscasts, resulting in a public outcry for change, Moller said. In response, she said, she and O’Neill received “a flood of requests” from other House members to sign on their bill as co-authors to show their support.
In addition to closing the intoxication loophole, Moller said the most substantive changes in the bill are creation of a new sexual extortion law and more legal protections for children.
So far, the bill has 35 co-authors — the maximum number allowed on one bill under House rules — and Moller said O’Neill is drafting an identical second bill so other members can sign up.
The measure has cleared two House committees and has at least one more committee hearing to go before it reaches the floor. “I’m pretty confident that we can get it passed in the House,” Moller said.
The bill hasn’t received a hearing in the Senate, but the Senate sponsor, Republican David Senjem of Rochester, said he has requested one. On Thursday, April 1, Senate Judiciary Committee Chairman Warren Limmer, R-Maple Grove, said in a statement that he was appalled by the Supreme Court’s ruling and wants to protect intoxicated people from sexual assaults.
“The Legislature is still in session, and we are currently building our omnibus judiciary and public safety budget bill,” Limmer said. “We still have time to address the Supreme Court decision and provide victims the legal protection they deserve.”
The 31-page bill is filled with proposed law changes, and Senjem said if the Judiciary Committee doesn’t have time to scrutinize them all this session, “at a minimum we should take that provision” to close the intoxication loophole.
“That’s the most important provision to me,” said Kaarin Long, a women’s rights staff attorney for The Advocates for Human Rights and former Ramsey County sex crimes prosecutor who served on the group that recommended the changes. Sexual assaults on intoxicated women are so pervasive, she said, “It happens every weekend, everywhere.”
As Justice Thissen wrote in the Supreme Court opinion: “nearly half of all women in the United States have been the victims of sexual violence in their lifetime — including an estimated 10 million women who have been raped while under the influence of alcohol or drugs.”
Moller said the real heroes in this effort are the survivors who were willing to “relive very traumatic experiences” to tell their stories to legislators, “knowing that if we change the law, it can’t be applied to their cases. But they do it because they don’t want the same thing to happen other victims of sexual assault.”
One of those survivors is Katie Kelly, who told the House Judiciary Committee last month that she was raped by a man one evening in 2019 after she was “voluntarily enjoying some cocktails” before she lost consciousness. She believes the man put a “date-rape drug” in her drink.
Kelly said she reported the incident to the Minneapolis Police Department, but a prosecutor later dropped the case in part because they could not prove she was “involuntarily intoxicated.”
“The rape impacted my life in profound ways,” she told the committee. “I was diagnosed with PTSD and depression, resulting in the need for long-term mental health therapy and anti-anxiety medication.”
Kelly’s case is all too common, Moller said. “Minnesotans who experience unthinkable trauma deserve to see the Legislature take action on this immediately.”