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Jim Dey is a staff writer for The News-Gazette. His email is jdey@news-gazette.com.

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A recent Minnesota court ruling concerning the question of what constitutes “consent” in sexual-assault cases has prompted an effort to rewrite that state’s law to something approaching Illinois’ version.

But a local defense lawyer said even under Illinois law, the consent issue is “really, really hot and controversial,” one that turns as much on the facts of individual cases as legal definitions.

“Alcohol-related sex cases are very, very difficult. There are always two sides to it,” said Urbana lawyer Steve Beckett.

The topic was raised anew after the Minnesota Supreme Court unanimously ruled that the accused — a 24-year-old man — could not be convicted because the alleged victim was already intoxicated before the two met.

Under Illinois law, a person’s intoxication can be construed as reflecting an inability to consent to sexual conduct. In other words, an individual can be “mentally incapacitated” by the drugs or alcohol they consumed.

But the Minnesota felony statute in question limits mental incapacitation and a lack of capacity to situations where the intoxicants are “administered to that person without the person’s consent.”

In this case, a 20-year-old woman consumed prescription medicine and vodka before she and a friend went to a bar in downtown Minneapolis. Court records indicate the bar refused her admittance because of her intoxication. It was then that she met alleged assailant Francois Khalil, who invited the women to a party.

The woman told authorities she ended up going to sleep on a couch and that Khalil had sex with her as she went in and out of consciousness. She reported the incident to police several days after it occurred.

Khalil was convicted of third-degree criminal sexual conduct. He’s been in prison since 2019.

Both the trial judge and a state appeals court interpreted the statute under which Khalil was charged to mean that the victim’s voluntary intoxication left her so “mentally incapacitated” that she could not consent.

But the state Supreme Court said the two courts misinterpreted state law in a way that improperly criminalized Khalil’s conduct.

“If the legislature’s intended meaning is clear from the text of the statute, we apply that meaning and not what we may wish the law was or what we think the law should be,” wrote Justice Paul Thissen.

Although there is now a movement underway to rewrite the statute in question, it’s not clear what the legislature actually intended when it wrote the law outlining the felony offense.

Did it really intend to make intoxicated females vulnerable to predators? Or was it simply a case of legislators writing statutory language so sloppily that the end result misrepresented their intentions?

In those kind of situations, judges sometimes interpret the law in a way that makes sense to them — in other words, what they think the legislature meant, not what it said.

In this case, Minnesota’s high court said the people of Minnesota are left with the clear meaning of the statute that was passed.

Whatever legislative changes are forthcoming, these kinds of cases will remain difficult to prosecute because it’s difficult for investigators to determine what really happened during alcohol-fueled encounters in which there are no disinterested witnesses.

Beckett pointed out that there are “levels of intoxication,” but no blood tests or breathalyzers to guide a determination of those levels.

The Minnesota ruling is sure to raise that issue again. But in the end, these kinds of cases will still rise or fall on the strengths of the facts in individual cases and how judges and juries interpret them.

Jim Dey, a member of The News-

Gazette staff, can be reached at jdey@news-gazette.com or 217-393-8251.

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