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You are here: Home / Open Threads / How Is This Even Possible in 2021?

How Is This Even Possible in 2021?

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So apparently if you get drunk in Minnesota, and someone rapes you, they can’t be charged with rape. How can this possibly be the law in the year 2021?  And MN is apparently not the only state where this is the law.

I was enraged when I read about this last night, and I am still enraged this morning.  How can a person possibly give consent if they are drunk?

A Minnesota man can’t be charged with rape, because the woman chose to drink beforehand, court rules.

After a 20-year-old woman took five shots of vodka and a prescription pill, she said she was standing outside a Minneapolis bar in May 2017 when a man invited her and a friend to a party. She agreed but soon found out there was no gathering, she later testified.

She “blacked out” instead, waking up on a couch and found that the man she had just met was allegedly sexually assaulting her, according to court records.

Almost four years later, the Minnesota Supreme Court unanimously ruled this week that Francios Momolu Khalil, 24, cannot be found guilty of rape because the woman got drunk voluntarily beforehand. The decision Wednesday overturned Khalil’s prior conviction of third-degree criminal sexual conduct, which had been upheld by an appeals court, and granted him the right to a new trial.

Un-fucking believable.

Under the existing statute, Khalil’s case could be charged as fifth-degree criminal sexual conduct, a gross misdemeanor, according to the court ruling.

Well, I agree with them on one thing.  That is really fucking gross.

Open thread.

Reader Interactions

156Comments

  1. 1.

    Baud

    The decision Wednesday overturned Khalil’s prior conviction of third-degree criminal sexual conduct, which had been upheld by an appeals court, and granted him the right to a new trial.

    Sounds like he was never charged with rape in the first place.

  2. 2.

    JML

    There’s a lot of badly written criminal statutes out there, especially as they relate to criminal sexual conduct and rape. I haven’t read the actual decision yet, but I’d bet that it’s due to a flaw in the how the statute was constructed, because this is not a court packed with a bunch of crazy people.

  4. 4.

    Baud

    Damn.

    Definitions of rape have generally been expanding in recent decades, said Jill Hasday, a professor at the University of Minnesota Law School who has written about the history of marital rape. Courts that used to require women to prove that they displayed “utmost resistance” to unwanted sexual activity now apply what Hasday characterized as a more realistic understanding of how consent typically happens.

  6. 6.

    Jeffery

    Wonder how this would play out if Francios Momolu Khalil raped a relative of the Minnesota supreme court justices is who voted for this? He will do it again.

  11. 11.

    Baud

    @WaterGirl:

    I don’t know how Minnesota defines different types of sexual assault, but it sounds like even the original charge was lower than it should be to cover this type of conduct.

  12. 12.

    RSA

    This part shocked me:

    Minnesota is among a majority of states that treat intoxication as a barrier to consent only if victims became drunk against their will. As of 2016, intoxication provisions in 40 states did not include situations in which someone chose to consume drugs or alcohol, according to Brooklyn Law Review.

  15. 15.

    Cervanes

    Yes, don’t blame the court. The legislature needs to get around to changing the law. That the original charge was “third degree criminal sexual conduct” is not an issue, the names of the charges don’t necessarily include the word “rape,” that doesn’t mean anything.

  23. 23.

    WaterGirl

    @mrmoshpotato: Apparently sluts who get drunk deserve to be raped.  Or maybe any woman who would get drunk is a slut, and what slut wouldn’t want to have sex when they are passed our or so drunk as to be incoherent?

  34. 34.

    WaterGirl

    I know this isn’t our usual Saturday morning fare, but damn, this is so upsetting and utterly disgusting that I decided it was worth it.

  35. 35.

    Le Comte de Monte Cristo, fka Edmund Dantes

    We probably should have a discussion about the role “intentional conduct” has in criminal proceedings, along with the burden of reasonable doubt (not to mention how muddy the water gets on consent and signals when both parties to the sexual act are voluntarily intoxicated).

    It ain’t simple, folks.

  37. 37.

    Enhanced Voting Techniques

    After a 20-year-old woman took five shots of vodka and a prescription pill,

    Not to derail but holy crap, she is lucky it was only rape and she didn’t end up in a morgue from heart failure.  I would imagine the state she was in they should be really charging Mr Slick with criminal indifference.

  38. 38.

    burnspbesq

    @Baud:

    Why?

    Because somebody is going to. One of the fundamental principles of American politics is that if bad shit happens on your watch, you’re accountable, even if you aren’t responsible. Ellison is in the wrong place at the wrong time.

  41. 41.

    WaterGirl

    @japa21:   @Baud:

    To me, this just makes it worse:

    Some legislators put forth a bill in 2019 to make voluntary drunkenness grounds for a felony rape charge, but the legislature instead convened a working group to study the issue.

    How much studying does it take to know that the current law is beyond wrong?  To them it’s obviously a back-burner issue that doesn’t warrant immediate action.

    edit:  The 2019 working group… that was two years ago!

  42. 42.

    Baud

    @burnspbesq:

    That’s silly.  Ellison has next to nothing to do with this.  Are rape victims’ advocates going to go after him because of what the statute says or the court did. Is Biden going to lose reelection because there are migrants on the border?  Does any Republican pay a price for bad things happening in their watch even when they cause it!  That’s a made up rule (not that it doesn’t happen, but it’s not the norm).

  43. 43.

    Starfish

    What was the race of the people involved in this case? I know that they don’t tell you much about victims to protect them, but I can’t find a picture of Khalil in this case. Is this part of the long history of the US government treating Black women like trash?

  44. 44.

    laura

    Men hate women and some of those men are attorneys, some are judges and some are rapists. They would insist they don’t hate women, it’s just that she was asking for it by (existing, drinking, dressing/acting/being perceived as a slut, saying no but without conviction……..this could literally go on all day). Here’s a wee primer on consent – it ain’t rocket surgery:
    https://youtu.be/pZwvrxVavnQ

  45. 45.

    New Deal democrat

    @JML: Blame the statute, not the court. The statute appears to require that the alcohol or other drug be “administered without her consent.”

    In other words, if the victim voluntarily got themselves intoxicated, there’s no rape.

    Change the statute, don’t get angry at the judges who applied it.

  48. 48.

    West of the Rockies

    I wonder if this would have come out the same had the victim been a straight male.

  50. 50.

    Omnes Omnibus

    @RSA: Do you want the state to be able to say that a woman can’t have a few glasses of wine with dinner and then chose to sleep with the person with whom she had dinner?  Making alcohol a bar to consent would criminalize that sexual activity.

    I just went and read the opinion.  It is based on a statute that was passed in 2020 which, for third degree sexual assault, specifies that the intoxication must have been involuntary.  For fifth degree sexual assault, the intoxication can be voluntary.  It looks to me like the court followed the law.*  Given that the Minnesota Supreme court isn’t famously stupid and that the decision was unanimous, I thought this was a fairly likely reason.

    *I don’t deny that the law is stupid.

  51. 51.

    Barbara

    @Le Comte de Monte Cristo, fka Edmund Dantes: I always hesitate to weigh in because circumstances really matter, but intoxication can’t be presumed to remove the ability to form intent (which is basically what consent is) for only one party. I am talking about situations where everyone is drunk. Where the victim is drunk but the perpetrator isn’t, or where other incriminating circumstances exist, it’s a different situation.​

  52. 52.

    WaterGirl

    @New Deal democrat: I’m sure the distinction about who is to blame for this travesty of justice is a big comfort to the woman who was raped.

    And it’s not a one-off, you can be sure.  This law puts a target on the backs of women who dare to have a few drinks.  Not that there isn’t always a target on women’s backs, for those who have a certain mindset.

  53. 53.

    Another Scott

    @New Deal democrat: OTOH, isn’t the state supreme court supposed to look at the big picture?  Equal justice under law and such?

    The footnote in the decision highlighted in the nycsouthpaw tweet above points out the problem with the legislation.  As I read the ruling excerpt, they didn’t say he was free to go, but that the case goes back downstairs for a new trial.

    So, it’s justice delayed, but not necessarily justice denied.  Yet.  Perhaps this increased attention will help her get a fairer hearing.

    Cheers,
    Scott.

  54. 54.

    Barbara

    @RSA: ​What Omnes said. Even when you drink and drive they measure blood alcohol content to determine your degree of impairment. You expect a charge of rape that is based solely on the intoxicated status of the victim to be at the perpetrator’s risk without evidence of impairment?

  55. 55.

    laura

    @WaterGirl: Much Obliged. Men never seem to have sexual agency when women are present and acting against their self interest by excessive consumption of intoxicants should not be “the way things are.”

  58. 58.

    Baud

    @Another Scott:

    OTOH, isn’t the state supreme court supposed to look at the big picture?  Equal justice under law and such?

    Not in applying criminal statutes. The judges should only be looking at the elements of the crime.

  59. 59.

    Omnes Omnibus

    @Omnes Omnibus: Correction:  I don’t know that the law was passed in 2020; it was the 2020 version of the statute that was cited in the case.

    Also, it looks like this is a thread where the lawyers will be having one conversation while the non-lawyers have a different one.

  60. 60.

    Baud

    Once again, though, if the Post story is correct, the victim didn’t consent while drunk.  She passed out and never consented.

  61. 61.

    WaterGirl

    @Baud:

    It’s an important distinction for everyone else though.

    Perhaps the distinction if important for those who are thinking about the law.

    But not to someone who is thinking about justice, and what it’s like to be a woman in that situation.

    Maybe not to a woman who might just be in that situation in the future.

    Maybe not to women who live in a world where “a working group to look into the matter” and still nothing has changed in the two years since 2019.

  62. 62.

    Barbara

    @WaterGirl: Was the lack of consent based only on the intoxicated status of the victim or were other elements demonstrating refusal to give consent nullified by her intoxication? Huge difference between those situations.

  63. 63.

    cmorenc

    @JML:

    There’s a lot of badly written criminal statutes out there, especially as they relate to criminal sexual conduct and rape.

    That’s exactly the problem with the Minn. statute in question, which reads:

    Minn. Stat. § 609.341, subd. 7 (2020). The statute provides:
    “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.

    Substitute the single word “and” for the bolded words (including the comma after agreement) and you get a much different result.  However, as written there’s no way to convict someone under this provision without the prosecution proving that the person was given the impairing intoxicating substances without their consent

    Don’t blame the court for refusing to implicitly read meaning into the statute when that meaning is flatly contradicted by the explicit words of the statute, which make proof that the intoxication was involuntarily induced a specific element of the crime.

  64. 64.

    Omnes Omnibus

    @WaterGirl: ​
      The problem here is the law, not the court. When there is a problem, determining what the problem actually is is vital to solving it.

  66. 66.

    Baud

    @WaterGirl:

    There’s no justice to be had by attacking the judges for a bad law though.  The only chance of justice in the future is to use the outrage to push to get the law changed.

  67. 67.

    Le Comte de Monte Cristo, fka Edmund Dantes

    @Barbara:

    Internet hashtag campaigns have a tendency to wreak major havoc on the legal system and lives. See Ansari, Aziz.

  69. 69.

    Eolirin

    @WaterGirl: Lighting a fire under the legislature to fix the law is an appropriate response, and one that’s made easier by outrage over the ruling, not harder.

  70. 70.

    Another Scott

    @Baud: Ok, thanks.

    And thanks for your other replies here.  It is important to direct our outrage at the appropriate places to have sensible changes made.

    Cheers,
    Scott.

  71. 71.

    WaterGirl

    @Baud: I didn’t see anything in the article to indicate that the judges said that what happened was obviously wrong, and that they encouraged the legislature to act post haste to correct what is obviously a bad law.

    I’m not saying don’t look at this from a legal perspective.

    But I am saying please also look at this from the perspective of the human beings involved – the woman who was raped, the women who see a stupid law that allows them to be raped, the women who see a fucking “working group” to consider the matter, with no action in the following two years.

  72. 72.

    Barbara

    @cmorenc: It seems like the law could be changed to add something like, “or, for any reason, if the person is incapable of agreement because of loss of consciousness.” It shouldn’t matter why you passed out. The problem is when you try to solve for the most common scenarios and the outliers make the entire law look stupid. It probably makes sense in less extreme cases.

  74. 74.

    Baud

    @WaterGirl:

    This is what confused me.  Why does her intoxication matter? If a man did this to a sober sleeping woman, would it still be only a “gross misdemeanor” under state law?

  75. 75.

    Baud

    @WaterGirl:

    I didn’t read the opinion, so I don’t know if the judges made any recommendations.

    No one is saying there’s no reason to be outraged.  Misdirected outrage is never a good thing IMHO (see the GOP base).  Based on what I read in the article, the problem is the law and not the court.

  76. 76.

    WaterGirl

    @Baud:  Agree.

    Or a sober sleeping man.  Or a drunk man.  This is about women and the assumption that women who drink are apparently giving pre-consent to rape.

    Women as objects, part 80-billion.

  77. 77.

    Omnes Omnibus

    Also, what about the prosecutors who should have know the fact of their case and the law involved but still charged the defendant improperly?

    @Barbara: The fifth degree statute does cover voluntary intoxication.  This is heading back for a new trial, and I would be very surprised, given that the facts are not in dispute, if the defendant does not very quickly plead to a fifth degree charge.

  78. 78.

    WaterGirl

    @Baud: If you look at what I wrote up top:

    So apparently if you get drunk in Minnesota, and someone rapes you, they can’t be charged with rape. How can this possibly be the law in the year 2021?  And MN is apparently not the only state where this is the law.

    I was enraged when I read about this last night, and I am still enraged this morning.  How can a person possibly give consent if they are drunk?

    A Minnesota man can’t be charged with rape, because the woman chose to drink beforehand, court rules.

    I was talking about the injustice and not about whether to blame the justices or the law.

    I am blaming the system that is fucked up, a system that thinks this issue is of so little consequence that they form a “working group” to think about it, a group that has apparently done little or nothing in the past 2 year.

  81. 81.

    Old Man Shadow

    Call me cynical, but if men were raped as often by men as women are, I think all of these rape laws would have been made airtight centuries ago.

  82. 82.

    Another Scott

    @Omnes Omnibus: The footnote highlighted in nycsouthpaw’s tweet says he was acquitted of the more serious charges so they are only considering the charge he was convicted of.

    I haven’t read the full opinion either.

    Cheers,
    Scott.

  85. 85.

    cmorenc

    The Minnesota statute in question also completely fails to resolve the situation where e.g.

    A is the host of a party attended by man B and woman C.  A provides a punchbowl spiked with vodka, with the taste of the alcohol component suppressed by the citrus-fruity composition of the punch, but doesn’t provide any cautionary label or warning that the punch is spiked.  C drinks several cups of the punch.  Then, guest B who had no involvement with spiking the punch, nor was aware C didn’t realize the punch was spiked – then makes sexual contact with C.   Is B criminally liable under the statute if he had no involvement in C’s involuntary intoxication?  How about if he was unaware C didn’t voluntarily become intoxicated?  In short, the statute’s wording is unclear as to what state of knowledge or involvement the prosecution needs to prove the alleged perp had about the voluntariness of C’s intoxication.

    Note that in marijuana-legal states, a similar scenario could unfold where the host provided THC-infused edibles, e.g. brownies without adequate disclosure to guests, but was otherwise uninvolved with the sexual assault.

  86. 86.

    Baud

    @Another Scott:

    says he was acquitted of the more serious charges

    Ah! That resolves my confusion as to why the facts look a lot worse than the charge.

     

    ETA: Suggests that either the prosecutor or the trial court messed up in identifying the correct lessor included charge.

  88. 88.

    RSA

    @Omnes Omnibus:

    Do you want the state to be able to say that a woman can’t have a few glasses of wine with dinner and then chose to sleep with the person with whom she had dinner?

    @Barbara:

    You expect a charge of rape that is based solely on the intoxicated status of the victim to be at the perpetrator’s risk without evidence of impairment?

    Thanks for the clarification, provided in true BJ style.

  90. 90.

    mozzerb

    According to the Wonkette article (https://www.wonkette.com/mn-supreme-court-its-not-rape-if-unconscious-woman-drank-voluntarily), the statute actually says “the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless“.

    Since “passed out drunk” would seem to be pretty obviously a case of “physically helpless”, I’m not sure why the definition of “mentally incapacitated” makes any difference here, unless that was what the prosecution based its argument on. Presumably they should base their argument on the “physically helpless” provision at the retrial (unless that has a similarly dumb rider attached).

  91. 91.

    Another Scott

    @cmorenc:

    Also too, from the nycsouthpaw thread:

    So by their logic someone who agrees to undergo a medical procedure where they are anesthetized also doesn't fit the definition of mentally incapacitated under the statute? Good grief.

    — ariel gordon (@ariel__gordon) March 26, 2021

    The “voluntary” part of the statute is messed up. What matters (as WG and laura and others point out) is consent.

    Cheers,
    Scott.

  92. 92.

    New Deal democrat

    @Another Scott: 

    If you think Judges as Superlegislators is good, then the other side gets to do it as well. See, Shelby County.

    In a democracy under the rule of law, I like Legislators to Legislate, and Judges to apply the law as written.

  94. 94.

    Le Comte de Monte Cristo, fka Edmund Dantes

    @Baud:

    Substantive due process in accordance with the plain text of criminal statutes – how does that work again?  ;)

  96. 96.

    Brachiator

    @cmorenc:

    RE:

    Minn. Stat. § 609.341, subd. 7 (2020). The statute provides:
    “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.

    Substitute the single word “and” for the bolded words (including the comma after agreement) and you get a much different result.  However, as written there’s no way to convict someone under this provision without the prosecution proving that the person was given the impairing intoxicating substances without their consent

    I am not a lawyer, but should be able to understand the concepts when explained to me.

    I don’t get this one.

    If a woman just fell asleep or blacked out because of illness, and was assaulted, wouldn’t that be rape?

    I don’t understand how this law, even poorly written, could evade common sense?

    If I have a drink in a bar or at a party, do I consent to get robbed if I pass out?

  98. 98.

    Another Scott

    @Another Scott: The comments on the nycsouthpaw thread are interesting.  Apparently this language is part of an “anti-roofie” statute, not about sexual assault in general.  It sounds like the prosecution messed up (either in the charges or at the trial or both), in addition to this particular law potentially having problems.

    And the district judge apparently messed up the jury instructions by in leaving out a comma that is present in the law, giving this avenue for appeal.

    :-/

    Cheers,
    Scott.

  100. 100.

    Le Comte de Monte Cristo, fka Edmund Dantes

    @Brachiator:

    It is a Fifth Amendment due process issue – you can only be held responsible for conduct which is violative of the express language of a statute, something which is both substantive AND procedural. If the statute doesn’t meet what you did, than you’re not responsible at law since we don’t do common law crimes in this country.

    The state does not get to infer violations around that.

  101. 101.

    Le Comte de Monte Cristo, fka Edmund Dantes

    @Barbara:

    I’d be looking to fire whichever assistant made the charging decision here. What bothers me more is that the trial court AND the lower appellate panel let this crap sail on by.

    I’ve complained for years about the quality of intermediate appellate panels.

  103. 103.

    silent-x

    @Miss Bianca: I put the ‘and’ in there and it still reads to me that it is A-OK! to rape someone who is under anesthesia.

    For example, my previous surgeon got his kicks by raping patients on the table; therefore it’s the patient’s fault for knowingly receiving anesthesia for their procedure?

  104. 104.

    New Deal democrat

    @Another Scott:

    Just as a complete historical aside, the Judiciary was never viewed as a separate branch of government up until the Glorious Revolution in 1689 or shortly thereafter in the UK. Prior to that, going all the way back to ancient Rome and Greece, the Judiciary was viewed as an arm of the Executive, I.e., enforcing the law in particular cases. When a new Executive was selected, so too were new judges, either appointed by the new Executive, or elected simultaneously (yes I am oversimplifying).

    The Founders in the US viewed the Judiciary as the least dangerous branch in large part because they thought it would have to rely upon the Executive to enforce their decisions (see, Andrew Jackson and the Cherokee Indian removal case).

    One thing I have not been able to discover is how the UK avoided judges serving “on good behavior” thereafter from turning into Superlegislators

  107. 107.

    cmorenc

    @Brachiator:

    I don’t get this one.

    If a woman just fell asleep or blacked out because of illness, and was assaulted, wouldn’t that be rape?

    I don’t understand how this law, even poorly written, could evade common sense?

    Because the explicit language of the statute makes establishing that the woman’s intoxication was “administered without her consent” a required element of the crime.  The statute is poorly written in a way that forecloses prosecuting someone (at least under this statute) for taking sexual advantage of an intoxicated person, without also proving that the intoxication was involuntarily induced.

  108. 108.

    trollhattan

    She was an underage drinker. What’s the legal exposure for whomever gave her the booze?

  110. 110.

    scav

    My inner grump immediately decided it was a joint play by the MN Board of Tourism and the Liquor Lobby for the Incel dollar.

  111. 111.

    Brachiator

    @Le Comte de Monte Cristo, fka Edmund Dantes:

    It is a Fifth Amendment due process issue – you can only be held responsible for conduct which is violative of the express language of a statute, something which is both substantive AND procedural. If the statute doesn’t meet what you did, than you’re not responsible at law since we don’t do common law crimes in this country.

    OK. Thanks. Part of this I understand, maybe even agree with.

    The law seems to say that voluntary intoxication does not prevent a person from being able to give consent.

    But the woman here claims that she blacked out. The WaPo story does not make clear whether the defendant ever sought the woman’s consent.

    I don’t see a way to read the law, as explained in the story, as saying that involuntary intoxication equals consent.

  112. 112.

    Brachiator

    @Baud:

    Isn’t the House of Lords considered the top court?

    The House of Lords is in many ways, surprisingly powerless.

    The UK has a Supreme Court, but Boris Johnson has argued before that they should not have any power over the government, and is trying to limit their authority.

  114. 114.

    Shalimar

    @JML: The statutory language isn’t as precise as it should have been, but they could have just as easily interpreted it to criminalize the behavior it was clearly meant to criminalize.  They chose the outcome they wanted.

  115. 115.

    Kirk Spencer

    @Brachiator: prove he didn’t ask consent. Prove that negative.

    And you can’t start by assuming he did not as our system nominally assumes he is innocent.

    It sucks. But wiping it out creates a system I like even less. So in general get the law changed and in specific look for ways to hammer the asshole remaining on the table.

    And if you want you can be another person crying in the dark over institutional injustice.

  116. 116.

    cmorenc

    @Shalimar:

    nope – the specific language of the statute created an insurmountable obstacle to interpreting it the way you wish it should mean – it explicitly requires that the womans intoxication was involuntarily induced, and not merely that she is too intoxicated to be capable of consent.

    This statute would make a great law school study in the consequences of poorly thought-out draftsmanship of statutes

  117. 117.

    SFAW

    @burnspbesq:

    One of the fundamental principles of American politics is that if bad shit happens on your watch, you’re accountable, even if you aren’t responsible.

    Mitch McConnell and 42 other “Senators” beg to differ. Yes, I know that’s not exactly what you meant. But, snark aside, that dictum is not followed as often as one would think.

  118. 118.

    Another Scott

    In other news, Cole is happy. (See his Twitter thing.)

    Good, good.

    Cheers,
    Scott.

  119. 119.

    Almost Retired

    It does look like advocates are pushing to change that law, which was evidently enacted by the legislative equivalent of a marauding pack of fraternity brothers.  At least in California, that’s not the law (Penal Code 261a3, for those of you keeping track from home).  Of course, that doesn’t mean judges won’t impose unreasonably light sentences on perpetrators (Brock Turner, anyone??)

  121. 121.

    WaterGirl

    @Almost Retired: Yeah, but they started pushing that in 2019, and it got shoved off onto some investigative committee where nothing seems to be happening.  To my mind, that mentality is part of the problem.

  122. 122.

    Almost Retired

    @WaterGirl:  True ‘dat, but sometimes it takes an extraordinarily unjust result to nudge reform out of committee hell.  Hoping this is it!

  123. 123.

    Brachiator

    @Kirk Spencer:

    And if you want you can be another person crying in the dark over institutional injustice.

    I am just trying to understand the law and the ruling from a lay person’s perspective.

    No need to try to connect this to issues of institutional injustice.

  124. 124.

    Almost Retired

    btw, off topic but I got the first Moderna shot in a surplus situation, just before California opens up eligibility to everyone over 50.  So, I didn’t necessarily need to spend a long afternoon in a lawn chair in Van Nuys, but I did get to start a good book.  Next up upon full vaccination is a road trip (I still won’t fly) to visit my 89 year old mother, who lives in a very red, mask-hostile community in the Midwest.  I was NOT going there unvaccinated and risk having one of those maskless goobers sneeze on me.

  125. 125.

    Le Comte de Monte Cristo, fka Edmund Dantes

    @Brachiator:

    So there will be other statutes that cover it – from other reads on the tale, he was acquitted on most of those, but wasn’t charged with a specific misdemeanor that would have been more likely to apply.

    It likely had a lot more to do with the initial prosecutor overcharging a laundry list on a weak case (while avoiding the misdemeanor charge)  than anything else.

  126. 126.

    artem1s

    @OzarkHillbilly:

    I wonder if it’s legal to beat up drunk judges. I mean, they chose to get drunk.

    See this is the issue exactly. I swear to Jeebus I’ve had it with this BS parsing about what is and isn’t rape.  The only way to solve this problem is to stop trying.  If it meets the standard of assault, it’s assault.  And that’s what should be charged.  Criminalizing sexual activity is a hand-me-down from Jim Crow era miscegenation racism and bigotry. It wasn’t until the victims started demanding that white men be charged the same way a black man would be charged that everyone started to get concerned about the severity of the rape laws and how they were applied. And since for-fucking-ever now, charging someone with rape, instead of a lesser assault charge (Big Ben, I’m looking at you now), has been the DA’s favorite way to get the local favorite sports hero off.  The DA’s know that’s a charge that the jury won’t convict over – the same way they now know a jury won’t convict a cop for first degree murder. It makes a sticky political  situation go away.

    Until someone sues some DA to apply the charge of assault equally – women will never be allowed justice.  I get that women have been trained to believe that there is some magical part of our bodies that we should think of as being extra special and needing ‘special’ laws for.  But hell, I’m no less assaulted if someone pushes me down and beats on my face for a couple of minutes.  Why is it that the perp gets to define assault by which body part he’s beating on and walk off scott free if he is the one deriving pleasure from it?  If assault charges carry the same penalties, then consent never becomes an issue.  but because men have decided to apply the assault laws unequally, victims of sexual assault don’t enjoy equal protection under the law.

    Until women stop playing their part in patriarchal systems and walk away from the ‘protection’ of their ‘rape’ laws, we will never get justice.  It’s time to demand the assault laws be changed and applied equally, and do away completely with the laws that were designed to be separate for a segregated special class of person who needed special protection from a particular kind of assault by a specific kind of rapist. My vajayjay doesn’t want or need the KKK’s protection anymore

  127. 127.

    quakerinabasement

    @JML: And you would win that bet. In the decision, the justices very plainly say that this isn’t the outcome they’d want–but it’s what the law, as written, says.

  128. 128.

    Roseglub

    It can’t be be rape every time people have drunken sex — drunken women have sex all the time and don’t believe they were raped.  Question is one of fact — was the person too drunk to consent?  This is a really tough area because the man and woman can have different and legitimate perceptions of the event — like the Aziz Ansari story (I think she should just have left if she didn’t want to have sex).  I’ve had a drunken women climb into my bed demanding sex, insisting she wasn’t too drunk to consent, then crying the next day that I shouldn’t have let her persuade me.  Cmon, people.  Have some agency.  And blackouts are extra tough, because the person by definition doesn’t know what happened.

  129. 129.

    RaflW

    @burnspbesq: Ellisons career will be far more influenced by the Chauvin trial and how that turns out. I also would think that the original Khalil case was handled by a county prosecutors office, and given that the case was against him thru the appeals court, it’s hard for me to see how Keith takes the rap.

    As a local, I’ll say that my general impression of associate justice Paul Thissen (who I voted for in the last MN S.C. election, and is quoted in the WaPo article) is a decent man. He’s the former Speaker of the MN House. He seems to be applying the law as written, and it really is up to our legislature — and us as people who can influence the lege — to fix this damn thing.

  131. 131.

    Another Scott

    Speaking of WTF… Wonkette:

    An Arizona man is in custody after holding 11 National Guard soldiers at gunpoint near Lubbock, Texas, on Monday. The soldiers, in three unmarked white vans, were delivering coronavirus vaccine to a town about 80 miles away. But the guy with the gun, one Larry Lee Harris, 66, from Wilcox, Arizona, convinced himself the uniformed soldiers were actually kidnapping a woman and a child. So really, what could a red-blooded armed American do but take action? It’s like they say: If you see something, be ready to shoot eleven soldiers.

    […]

    Harris was arrested without any trouble; the Post says that, in addition to the .45 caliber pistol he’d been waving at the Guard members, he also had a spare magazine in a shirt pocket, plus a third in his truck, plus more ammo. The AP reports that all told, Harris had three guns with him. When you’re saving women and children from the clutches of US armed forces helping to vaccinate people against a pandemic, you need to be really prepared.

    The AP also says Harris caught a boatload of charges for his imaginary rescue mission:

    Harris was arrested on charges of aggravated assault with a deadly weapon, unlawful restraint of 11 National Guard members, unlawful carrying of a weapon, impersonating a public servant, and interference with Texas military forces. He remained jailed Tuesday on $44,000 bond and had a federal hold on his custody. Jail records list no attorney for him.

    In his statement, Williams said Harris “appeared to be mentally disturbed,” which is exactly the sort of fellow you want out there protecting America’s highways and byways while packing multiple firearms.

    […]

    (Emphasis added.)

    Well, duh.

    :-/

    Looks like he was at least 500 miles and 8 hours from home. One wonders what he was doing.

    There’s more to the story!

    I hope he gets help, and gets his guns taken away for life.

    Cheers,
    Scott.

  132. 132.

    debbie

    @MagdaInBlack:

    Am I the only one who remembers the Stanford swimmer who basically got zero punishment for raping an unconscious woman behind a dumpster? (Perhaps if I remind you of where doctors later found pine needles?) If I recall, the judge slashed the jury’s recommended sentence to a more “reasonable level” after the swimmer’s father pointed out that his son didn’t deserve such a harsh punishment for just “20 minutes of fun.”

  133. 133.

    Cameron

    “Third degree?”  “Fifth degree?”  How many goddam degrees are there?  IANAL, and I don’t pretend to any deeper understanding of the law than “it’s not OK to take a swing at a cop when you’re drunk” (please don’t ask how I know this).  But, c’mon, this is angels-dancing-on-the-head-of-a-pin horseshit, designed to find ways to give criminals a slap on the wrist instead of any sort of righteous reckoning.

  134. 134.

    Just Chuck

    What if both parties were drunk?  Seems like it could be mitigating, but then you wouldn’t excuse an assailant for being intoxicated, would you?   The law isn’t computer code: circumstance and intent really matter, and sometimes you still get Rashomon in the end.

  136. 136.

    karen marie

    Minnesota law: “there is a lack of consent if a person engages in a sexual act with … a person who is incapable of consent because he or she is physically helpless. … “Physically helpless” means that a person is: unconscious”

    What relevance is there whether the person is unconscious because they drank too much or were simply asleep? If you’re unconscious, you can’t give consent, period. Seems like a really bad ruling to me based on their existing law.

  139. 139.

    The Fat White Duchess

    @debbie:  You are not the only person who remembers the horrendous case of Brock Turner the rapist.
    At least the judge was recalled because of it.

  140. 140.

    The Fat White Duchess

    @The Fat White Duchess:  @WaterGirl And much appreciation for all your comments in this thread.

    More generally: yes, the assumption is still that a woman who is with a man after drinking has lost the right to refuse sex.  (For that matter, even as a nondrinker, I had situations in my youth where I was told, by “friends” as well as perps, that my refusal was invalid.)

    I suppose we should be glad that in Certain States (not any of those I’ve lived in), no statutes are enforcing the Biblical “solution” for rape.  Though I gather some families still do.  And it wouldn’t surprise me if we saw attempts to pass such statutes in some states under the guise of religious freedom.

  141. 141.

    The Moar You Know

    Looks like he was at least 500 miles and 8 hours from home. One wonders what he was doing.

    There’s more to the story!

    I hope he gets help, and gets his guns taken away for life.

    @Another Scott:   Doesn’t need help because he’s not mentally disturbed.  He knew where those guys were and what they were carrying.  The shit about kidnapping is his cover story/excuse.   Everything about this smacks of a pre-planned robbery with help from at least one guy on the inside.

  144. 144.

    Yutsano

    @Dorothy A. Winsor:

    An omitted Oxford comma takes the blame

    I’m just going to say it. I feel vindicated.

    (I’m not meaning to take away from the seriousness here. But as he’s not off the hook yet I’m not going to start throwing things at walls just yet. If he somehow gets away with it then yeah I’m gonna be much more pissed.)

  145. 145.

    Betsy

    @RSA: So if a person is passed out drunk and another person finds them, they just own their body and can do whatever they like with them! Unbelievable.

    Can I have someone’s jewelry and wallet if they’re passed out drunk?  How about their 401K?

  146. 146.

    Betsy

    @Barbara:  Yes, right, because the woman knows if she wanted to have had sex?? I mean she is still alive and can tell us, right???

  147. 147.

    Ruckus

    @artem1s:

    Not being the of the female side of the plot I have to ask, you seem to be saying that rape is no different than simple assault. I’m not saying this isn’t a way to make things more equatable but still isn’t rape very intrusive upon you, in a way that simple assault is not? And while a male maybe raped in the same manner as a woman, if not in the same organ, this seems to be a rather one sided crime and one not perpetrated by women against men. As well a woman may have a very long term reminder of the assault, as well as short term effects far different than a man likely would.

    It strikes me that as much as equality is a noble goal, the possible effects can be far different here between men and women and maybe the law should take that into consideration.

    That’s not to say that better laws shouldn’t be written and better use of them would be far better for society.

  150. 150.

    J R in WV

    @Baud: ​

    Once again, though, if the Post story is correct, the victim didn’t consent while drunk. She passed out and never consented.

    Hell that’s enough for a mule to pass out… wonder what the prescription pill was? Did the defendant provide that? Was it a pill she took routinely, but without the 5 shots of vodka? Was the Vodka 80 proof, or 100 proof?
    I’m sorry, everyone knows that someone in a drug induced coma is helpless and cannot consent to anything — lucky if they can keep breathing !!!
    How they got into that drug-induced coma seems irrelevant to me, somehow. Glad I’m not a lawyer in this thread…​

  151. 151.

    Anonymous

    @cmorenc:

    Note that in marijuana-legal states, a similar scenario could unfold where the host provided THC-infused edibles, e.g. brownies without adequate disclosure to guests, but was otherwise uninvolved with the sexual assault.

    Actually, I’ve been to parties with THC-infused edibles (a stunning perfect (but tiny) recreation of Stonehenge!) but where the edibles were clearly labeled for those who prefer not to indulge (not that being STONEhenge isn’t a clue) and also delicious.

    Brownies are child’s play. This was serious art in several different ways.

  152. 152.

    J R in WV

    @Omnes Omnibus:

    Do you want the state to be able to say that a woman can’t have a few glasses of wine with dinner and then chose to sleep with the person with whom she had dinner?

    Sleep with? I’ve slept with lots of several women with no sex involved. Aren’t we talking rape here? Involuntary sexual intercourse? Not sleep for sure!!!

  153. 153.

    J R in WV

    @cmorenc:

    This statute would make a great law school study in the consequences of poorly thought-out draftsmanship of statutes

    “Poorly thought-out”? Or exactly as designed! So as to exclude many common cases of women fed more intoxicants than they were aware of in order to take advantage of said helpless women?

    We are talking about state legislators here, and in my experience many of those folks are as crooked as they can get away with.

  156. 156.

    BQUIMBY

    Late to this conversation…too bad as this was v. good list for rape prevention…aimed, gasp, at potential rapists, and may get lost in all the comments…
    1. Don’t put drugs in women’s drinks.
    2. When you see a woman walking by herself, leave her alone.
    3. If you pull over to help a woman whose car has broken down, remember not to rape her.
    4. If you are in an elevator and a woman gets in, don’t rape her.
    5. When you encounter a woman who is asleep, the safest course of action is not to rape her.
    6. Never creep into a woman’s home through an unlocked door or window, or spring out at her from between parked cars, or rape her.
    7. Remember, people go to the laundry room to do their laundry. Do not attempt to molest someone who is alone in a laundry room.

    8. Use the buddy system! If it is inconvenient for you to stop yourself from raping women, ask a trusted friend to accompany you at all times.
    9. Carry a rape whistle. If you find you are about to rape someone, blow the whistle until someone comes to stop you.
    10. Don’t forget: Honesty is the best policy. When you are asking a woman out on a date, don’t pretend you are interested in her as a person; tell her straight up that you expect to be raping her later. If you don’t communicate your intentions, the woman may take it as a sign you do not plan to rape her.

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