And the Court is right! But this is a really stupid law. According to Minnesota law, “‘mentally incapacitated’ means that 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.”
Wait, what? Does that really mean that a woman who is incapable of thinking straight or fighting off an amorous creep intent upon getting some cheap sex is mentally incapacitated and incapable of consent if she has been made blotto by a date who kept telling her she was drinking non-alcoholic punch that was really laced with vodka, but if she drank the exact same amount knowing what was in the punch, she isn’t “mentally incapacitated” even if she can barely speak or move to defend herself?
It does indeed. The law is, some Brit memorably said (but not Charles Dickens), an ass.
Thus, the Minnesota Supreme Court ruled 6-0 last week, rape victims who willingly consume alcohol or drugs before they are sexually assaulted aren’t “mentally incapacitated.”
Francios Momolu Khalil, convicted of third-degree criminal sexual conduct, was granted a new trial because his victim, already drunk as a skunk, had agreed to go to a party with him, passed out, and woke up to him using her limp carcass as a sex toy. Minnesota’s highest Court held that “the text, structure and punctuation of the legislature’s one-sentence definition of mentally incapacitated supports Khalil’s interpretation of the statute—namely, that a person is mentally incapacitated only if under the influence of alcohol administered to the person without the person’s agreement.”
Under the law as written, then, Khalil’s conduct could be considered fifth-degree criminal sexual conduct at most, and that’s a gross misdemeanor, rather than a felony. “Whether conduct like Khalil’s should constitute a higher-level offense is not a question we have authority to answer,” the opinion concludes.
And there it is. It is not the judiciary’s job to make incompetently-drafted and passed (and signed) laws competent. To do so would be to usurp the legislature’s function in a democracy. Law-makers make laws, and as long as those laws, however idiotic, like this one, are constitutional, clear, and legal, the courts have no business turning them into better laws by fiat.
This drives non-conservatives crazy, but there lies the distinction between law and ethics, a divide that almost all progressives, a majority of the public, and judges like touchy-feely Justice Sotomayor cannot fathom. The judiciary’s role under the separation of powers isn’t to second guess elected officials or overrule their legal but idiotic decisions. To do so would be both illegal and unethical, since it would be an abuse of power.
Let’s get this straight once and for all. The law here was unethical, because it’s incompetently drafted. The law is still legal, though, and since the conviction of a defendant who should be considered a rapist under law but isn’t violated that admittedly inept law, the conviction was illegal—fair, on the facts, but illegal, and thus not fair under the law. The legal and ethical decision could only be to throw out the conviction. Then the task falls to the legislature to fix the law, which, as the opinion strongly hints, is now its job.
The rapist lucks out. If the law is finally fixed so that “mental incapacity” means “mental incapacity” without the “it’s your own damn fault if you get that smashed” feature, it still can’t apply to Khalil. That would be applying a law ex post facto, which is illegal, and thus unethical.
Ethics Alarms 
And there’s a non-zero chance the legislature will “fix” it erring the other way now: having sex after drinking a glass of wine will make the partner a rapist. Yay for legislatures!
I’m sympathetic to the idea that it’s at least partially your own damn fault if you go out drinking and then drunkenly agree to have sex with someone sober you wouldn’t touch with a 10 foot pole. Deliberately undercutting your own mental acuity in the name of fun does not absolve you from the choices you made while under the influence. Otherwise, being drunk and causing an auto accident would be a defense rather than a crime in it’s own right.
I am NOT a fan of people who get blotto drunk/stoned/etc even though I think they should have that right. They should also be held accountable for ALL the consequences of choosing to do so.
In this particular case, being actually passed out seems like it should still qualify as mentally impaired regardless of how she got to that state.
Jack: “The rapist lucks out.”
I think you are missing the point. The “rapist” may not be one.
The law appears to be intended for date rape drugs.
However, how do you distinguish between that person and someone who drinks too much and makes bad decisions?
You say that voluntary intoxication does not mentally incapacitate you. Yeah, it is a silly result, but not without basis in the law. It is almost like an assumption of risk, or the defense of intoxication (involuntary intoxication can be a defense to intent requirements in some crimes).
That problem this law is aimed at appears to be those people who get drunk and make decisions they later regret. The message is that you can’t cry rape in that case. Why? Because, chances are, your “rapist” is also drunk as a skunk and it becomes difficult to impossible to tell who raped whom. This is the problem that offends the leftist orthodoxy. If you have sex with someone with impaired judgment who willingly has sex with you, you are a rapist, even if your judgment was also impaired.
There is no simple answer here.
Who gets lost in this shuffle? The person who is actually passed out by voluntary intoxication and actually, not legally, ACTUALLY (in contrast, the black-out drunk can ACTUALLY consent, but it is only the LEGALITY of consent that is affected by the law) cannot consent to sexual activity. (I don’t know if that describes this case, so I don’t know if you can call him a “rapist.”) Threading these various scenarios and coming up with a coherent law that passes Rule of Lenity muster is no easy task.
I don’t blame the Court for deciding not to touch this dumpster fire of a law; dumpster fires create a hot mess.
But, yes, it led to a stupid result as far as distinguishing between mentally incapacitated people.
-Jut
Read part of one of the links: “The woman agreed to go to a party with him but later passed out at the house and allegedly woke up to him raping her.”
Presuming what she says is true, she would fall in lost shuffle I mentioned above as a genuine victim.
-Jut
Under the dumb law, he’s not a rapist, but if you initiate sex with a woman while she is passed out or unconscious, you’re a rapist. You need a law to punish that conduct, but not to define it.
Here is a passage from the Book of Genesis.
Genesis 19:30-35 (emphases added)
While in college, mid sixties, two male friends and one female ingested some Heavenly Days Morning Glory poppy seeds after boiling the arsenic off of them. They were looking for a belladonna high and achieved one in short order, They became stuporous and barely able walk home a short distance. The men headed in that direction leaving me with the female who I didn’t know well. I was totally sober and it was after ten pm. She lived off campus so I loaded her up in my car and got her to her mobile home where she flopped on to her bed saying “Just lock the door when you are done.” as she passed out.
I’m pretty sure she was consenting to sex, but I declined. I was happy enough to get her safely home, and couldn’t conceive of accepting the invitation of an inanimate person.
Luckily for them, they all survived, and two of them married. My ethical dilemma was whether to call the police without their permission who would have involved the medics but assured their welfare. They may have been subsequently arrested or expelled, so I just bolted to my parents home a half hour away. Had they all died I would have had to live with that. The event did teach me not ever become so impaired that I could not assure my own safety and that of others if they needed help.
Even so, I feel now that I should have called the police to do a welfare check.
Having sex with someone passed out is rape in my book.
I had a similar experience in college, when the most gorgeous woman in the cast of a show I was in latched onto me at the cast party, got incredibly drunk, and invited me to her dorm room, where I tucked her into bed and left. She barely remembered any of the evening, other than the fact that she was blotto and I didn’t take advantage of it. She was incredulous. And I got the impression that she thought I was a wimp.
You dodged a bullet, Jackson. Just finished reading Styron’s “Lie Down in Darkness.” So many beautiful young women are so messed up because they were molested when they were beautiful young children, usually by family members. It’s debilitating. I also think many of these young women go into acting as a means of attempted escape from their demons and as a way to attract the attention they hope will make them feel better. But it never does. Their guilt ends up killing them, either psychologically or actually or both.
Well, I dodged ONE bullet. On the downside, I experienced a phenomenon for the only time in my life that is usually only mentioned colloquially, in colorful terms, and it was incredibly painful. I didn’t see that coming, though it wouldn’t have changed my conduct if I had.