ST. PAUL, Minnesota (TUSEN) –State Representative Marion O’Neill spent years working to right the wrongs she said plagued Minnesota’s sex crimes laws.
But suddenly this spring, a little-known legal loophole she had tried to change burst into public view, drawing hundreds to the state capital demanding action.
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The Minnesota Supreme Court has just unanimously overturned the conviction of a man who raped a woman whom a jury deemed “mentally incompetent” and incapable of consenting to sex.
But the victim took a prescription narcotic and drank alcohol on purpose, the court ruled, falling outside the law’s straightforward definition of “mental incapacity,” a term covering those who are involuntarily intoxicated, such as someone else. ‘one who is after sipping a drink who has been spiked with a date rape drug.
The ruling noted that the legislature had the “unique institutional capacity” to address this.
“They ruled like the law was written,” O’Neill said. “They were right about the law, they were wrong in the sense of justice for the victims.”
She admitted that the public outcry had brought to light the problem of “what was wrong with our statutes”. The assault on the woman at the center of this Supreme Court ruling has not been treated the same under the law.
“I’m glad they protested,” she said. “It really increased the level of awareness.”
Minnesota’s law treating voluntarily intoxicated sexual assault victims differently from those who are unintentionally intoxicated has remained unchanged for decades – the Supreme Court in its ruling said the law’s origins date back to 1889.
But on Wednesday, new law expanding the definition of “mental disability” comes into effect, making it easier to prosecute sexual assault cases when a victim is intoxicated by her own choice.
“This is an important victory for survivors, advocates and others who wish to bring these cases to justice,” said Representative Kelly Moller, DFL-Shoreview, who is assistant counsel for Hennepin County. “I hope this means for survivors that they feel more comfortable reporting their crimes and that they know there are tools in the toolkit for them to receive justice.
Ali Nesmith represents the very type of survivor advocate and prosecutors say Minnesota’s law has failed for decades.
In March 2019, the 27-year-old said she went out for a drink with some new colleagues. In a recent interview, she recalls asking to crash into a coworker’s house after they left because she was too drunk to go home.
That’s all she remembers before waking up the next morning confused and helpless, unsure of what happened.
“My life changed that night,” Nesmith said.
She woke up the next morning naked with her clothes on the floor, unsure of what had happened, but chose to compartmentalize the “what ifs” and get to work the next morning.
Hours later, she received a text message, the jarring missing link that put her back together. His alleged attacker sent him a video in which Nesmith is visibly drunk. The man filming the video moves her chin up and down, pretending to speak for her, offering his consent to sex.
“I no longer had the ability to compartmentalize it,” Nesmith said, recounting feelings of self-doubt and questions of what she could have done to prevent it. “It was easier to think it was my fault than to accept that someone had done something very sinister to me.”
She reported to the police. He was charged. It was a glimmer of hope that the video would seal his fate, until it darkened.
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“It doesn’t change the circumstances that I wasn’t drunk without my consent. I was intoxicated by my own actions, ”she said.
The man accused of sexually assaulting Nesmith faces fifth degree criminal sexual behavior, which is a serious offense. If found guilty, the prosecution would not put him on the Minnesota Predatory Offender Registry.
“It sounds like an epidemic but a silent one that no one wants to talk about,” Nesmith said.
Moller, a prosecutor, noted that there are other state laws defining sexual misconduct and sometimes these are applicable to cases in which a victim is willfully intoxicated. But in general, these laws, she said, “did not sufficiently cover the situations that we have seen.”
The charge against Nesmith’s alleged assailant, “non-consensual sexual contact,” is often the only avenue open to prosecutors seeking to bring these crimes to justice, Moller said.
“It was the only other tool in the toolbox and it was just insulting to the victims that this is what they had left to be able to indict these cases,” she said.
Moller worked with O’Neill in a bipartisan fashion to help guide the new law changes. Victims, attorneys, attorneys and law enforcement also weighed in, presenting well-verified proposals in a report earlier this year.
“I think this will create a better system and better access, and put our words into action,” said Artika Roller, executive director of the Minnesota Coalition Against Sexual Assault, which contributed to the task force on the issue. “Very often we hear the community or lawmakers say things like, ‘We think we want to support victims and survivors. But not just those words, we actually have a system that puts the action behind those words.
For O’Neill, who in recent years has pushed for an overhaul of the law, the sweeping changes – which include the elimination of the statute of limitations – are long overdue.
“I think it’s frustrating that we’ve put up with this attitude for so long, that if a woman drinks and you get raped, it’s up to you,” she said. “It is your fault.”
Minnesota not alone in “poisoning loophole”
Michal Buchhandler-Raphael, professor at Widner University Commonwealth Law School, studied how laws across the country deal with sexual assault when victims are intoxicated.
She believes at least 15 other states have laws similar to the recently amended Minnesota law.
But the most serious problem, she said, is that prosecutors are reluctant to present cases with “imperfect victims,” such as those who get drunk and pass out with little memory.
“There are many areas in the criminal justice system where we see over-enforcement and over-prosecution,” she said, citing some drug-related offenses and offenses. “But in this particular area of sexual assault, I don’t see a problem with over-execution and over-chasing, I see the reverse problem of under-chasing.”
Nesmith, who the new law will have no impact on since it does not apply retroactively, said she was grateful to the legislature for updating a law that has remained unchanged for decades.
But in his opinion, the hard work has only just begun. Society needs to believe the survivors for any change to be meaningful.
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“At the end of the day, the laws are being written,” Nesmith said. “We need people who believe them to matter.”