By Caroline Cummings

ST. PAUL, Minn. (WCCO) — State Rep. Marion O’Neill spent years working to right the wrongs she said plagued Minnesota’s laws on sex crimes.

But suddenly this spring, a little known legal loophole she’d been trying to change burst into public view, drawing hundreds to the state capitol demanding action.

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The Minnesota Supreme Court had just unanimously overturned the conviction of a man who raped a woman a jury found to be “mentally incapacitated” and unable to consent to sex.

But the victim took a prescription narcotic and drank alcohol willingly, the court ruled, failing to meet the law’s plain definition of “mentally incapacitated,” a term covering those who are intoxicated involuntarily, like someone who is after sipping a drink that was spiked with a date rape drug.

The decision noted that the legislature had the “unique institutional capacity” to fix it.

“They ruled as the law was written,” O’Neill said. “They were right on the law, they were wrong in the sense of justice for victims.”

She credited the outcry from the public as shining a light on the problem of “what was wrong with our statutes.” The assault against the woman at the center of that Supreme Court ruling was not treated the same under the law.

“I’m glad they protested,” she said. “It really did raise a level of awareness.”

Minnesota’s law treating voluntarily intoxicated victims of sexual assault differently than those involuntarily intoxicated remained untouched for decades — the Supreme Court in its ruling said origins of the law date as far back as 1889.

But on Wednesday, a new law expanding the definition of “mentally incapacitated” takes effect, making it easier to prosecute sexual assault cases when a victim is intoxicated by his or her own choosing.

“This is a significant victory for survivors and advocates and others who want to bring these cases to justice,” said Rep. Kelly Moller, DFL-Shoreview, who is an assistant Hennepin County attorney. “I hope that this means for survivors that they feel more confident in being able to report their crimes, and know that there are tools in the toolbox for them to receive justice.”

Ali Nesmith represents the very type of survivor advocates and prosecutors say Minnesota law for decades has failed.

In March 2019, the now 27-year-old says she went out for a night of drinks with new co-workers. In a recent interview, she recalled asking to crash at a colleague’s house after they went out since she was too intoxicated to get home.

That’s all she remembers before waking up the next morning confused and distraught, unsure of what happened.

“My life changed that night,” Nesmith said.

She woke up the next morning naked with her clothes on the ground, 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 pieced it together. Her alleged attacker sent her a video in which Nesmith is seen visibly drunk. The man taking the video is moving her chin up and down, pretending to speak for her offering consent to sex.

“I didn’t have the option to compartmentalize it anymore,” Nesmith said, recounting the 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 it was to accept someone did a very sinister thing to me.”

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She came forward to police. He was charged. It was glimmer of hope that the video would seal his fate, until that dimmed.

“It doesn’t change the circumstances that I wasn’t intoxicated without my consent. I was intoxicated by own doing,” she said.

The man accused of sexually assaulting Nesmith faces fifth-degree criminal sexual conduct, which is a gross misdemeanor. If he were convicted, the charge would not put him on the Minnesota Predatory Offender Registry.

“It feels 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 statutes defining sexual misconduct and sometimes those are applicable for cases in which a victim is voluntarily intoxicated. But in general those laws, she said, “didn’t cover enough of the situations that we’ve been seeing.”

The charge against Nesmith’s alleged assaulter, “nonconsensual sexual contact,” is often the only avenue left for prosecutors seeking to try these crimes in court, Moller said.

“That was the only other tool in the toolbox and it just felt insulting to the victims that that’s what they were left with for being able to charge these cases out,” she said.

Moller worked with O’Neill in bipartisan fashion to help shepherd the new law changes. Victims, advocates, attorneys and law enforcement also weighed in, putting forth well-vetted proposals in a report earlier this year.

“I do believe it will create a better system and access, and puts action behind our words,” said Artika Roller, executive director of the Minnesota Coalition Against Sexual Assault, which contributed to the working group on the issue. “Quite often we hear community or legislators say things like, ‘We believe we want to support victims and survivors.’ But not only are those words, we actually have a system that puts action behind those words.”

For O’Neill, who for the last few years has pushed for an overhaul of the law, the sweeping changes — which include eliminating the statute of limitations — are long overdue.

“I think it’s frustrating that we tolerated that attitude for so long, that if a woman drinks and you get raped, it’s on you,” she said. “It’s your fault.”

Minnesota Not Alone In ‘Intoxication Loophole’

Michal Buchhandler-Raphael, a professor at Widener University Commonwealth Law School, has studied how laws across the nation treat sexual assaults when victims are intoxicated.

She believes at least 15 other states have similar laws to Minnesota’s recently changed statute.

But the more serious problem, she said, is prosecutors being reluctant to bring forward cases with “imperfect victims,” like those who get drunk and black out with little memory.

“There are many areas in the criminal legal system that we see over-enforcement and over-prosecution,” she said, citing some misdemeanor and drug crimes. “But in this particular area of sexual assault, I don’t see a problem of over-enforcement and over-prosecution, I see the opposite problem of under-prosecution.”

Nesmith, whom the new law will not impact since it does not apply retroactively, said she is grateful the legislature updated a law untouched for decades.

But in her view, the hard work is really just beginning. Society needs to believe survivors in order for any change to mean something.

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“The laws at the end of the day are writing,” Nesmith said. “We need people who believe them in order for them to matter.”

Caroline Cummings