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.