Francois Khalil, then 20, picked up a drunk female victim outside a Dinkytown bar in 2017, took her back to his North Minneapolis home and raped her after she passed out on a couch.
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A Hennepin County jury in 2019 convicted him of third-degree sexual conduct.
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Khalil’s attorney argued the felony charge should be overturned because that statute is for cases in which the victim had drugs or alcohol administered to her without her agreement.
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 criminal 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 bouncer refused to let her into the Dinkytown 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 the victim 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.
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