A Sexual Assault Conviction Was Just Overturned Because the Victim Got Herself Drunk

Under Minnesota law, someone only qualifies as “mentally incapacitated” if they do not drink or take drugs of their own free will.
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3D printer creates edible prints in shot glass (Photo by Cooper Neill/Getty Images for Bulleit Frontier Whiskey)

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A state Supreme Court has decided that if a rape victim got herself drunk, her rape might not matter in a court of law. It’s a decision that even the justices seemed reluctant to make—but state law tied their hands.

On Wednesday, the Minnesota Supreme Court overturned the conviction of Francios Momolu Khalil, who stands accused of sexually assaulting a woman in 2017. He picked up a woman who’d been turned away from a bar for being too intoxicated, invited her to a party, and then took her back to his house—where there was no party, as detailed in the 6-0 Supreme Court decision.


The woman, who’d taken shots and a prescription narcotic before meeting Khalil, fell asleep on his couch. She woke up to find Khalil penetrating her, per the decision.

“No, I don’t want to,” the woman told him.

“But you’re so hot, and you turn me on,” Khalil replied.

She lost consciousness again. When she woke up, sometime after 7 in the morning, she saw her shorts around her ankles.

In his appeal, Khalil didn’t challenge that version of events. He also did not challenge prosecutors’ argument that he knew, or could have figured out, that the victim was extremely intoxicated. Instead, his lawyers argued that the victim wasn’t “mentally incapacitated,” as required under the state’s third-degree criminal sexual assault law. Under that law, someone qualifies as “mentally incapacitated” only if they do not drink or take drugs of their own free will.

Victims of sexual assault are regularly accused of “asking for it.” Women, especially, are told to modify their own behavior to evade attacks. They’re taught to drink less, to watch every cocktail they drink so no one can slip roofies in, to never trust a friendly stranger. If they slip up, it’s on them—not on anyone who may take advantage of them.

And regardless of the Minnesota law, in reality, someone’s liver isn’t going to magically process alcohol differently depending on whether they’ve done shots for fun or someone forces them. 

But six justices on the Minnesota Supreme Court agreed with Khalil’s argument, much to their own apparent chagrin. 


“A person under the influence of alcohol is not mentally incapacitated unless the alcohol was administered to the person under its influence without that person’s agreement,” wrote Justice Paul Thissen in a decision that upended Khalil’s conviction and sent his case back down to the lower courts for a trial.

Thissen pins the blame for this ruling on the Minnesota state Legislature, which, after all, wrote the law. And, he said, lawmakers have a “unique individual capacity” to change it. 

In a footnote, Thissen makes sure to mention that he and his fellow justices are “mindful of and concerned” about the pervasiveness of sexual assault in the U.S. Almost half of all women in the U.S. have been sexually assaulted in their life, including an estimated 10 million women in the U.S. have been raped while under the influence of alcohol or drugs, Thissen wrote, citing a brief in the case.

Advocates for reforming Minnesota’s sexual violence laws have already called out this law as problematic, and not just because it seems to codify the notion of “asking for it” into law. 

In practical terms, it’s a nightmare for prosecutors: In February, a group of experts and sexual assault survivors, tasked by the Legislature with examining Minnesota’s laws, slammed the state’s definition of “mentally incapacitated” as a "significant roadblock" for prosecutors hoping to punish assailants in cases where someone got voluntarily intoxicated and couldn’t consent to sex.

Lauren Rimestad, spokeswoman for the Minnesota Coalition Against Sexual Assault, went even further on Thursday. She told the Star Tribune that the law makes it “difficult to impossible” to prosecute cases like Khalil’s. 

“Judge Thissen's decision just clarifies that our law needs to be fixed through the Legislature, not through courts," she said.