It's Not Rape If She Got Herself Drunk
And Other Ways the Courts Got It Wrong This Week
I had literally just finished typing the sentence “it’s still rape or sexual assault if you’re drunk” in an article I’m writing for a new teen health and puberty website when my mother sent me this infuriating headline from the Washington Post: “A Minnesota man can’t be charged with felony rape because the woman chose to drink beforehand, court rules.” I’ll get into the details of the case below, but the long and short of the ruling is that the law as written provides a pretty serious loophole—it can’t be considered third degree sexual misconduct, which is a felony, if the victim got themselves drunk. And here’s the really scary part: 40 states have the same loophole. In the decision, the justices noted that they had to rule based on the law as written and not what they wished it said so maybe we have to cut them a little slack, maybe. Still, their decision inspired this issue of Sex on Wednesday because many courts across the country got it wrong this week alone. Please note that my flirtation with law school does not qualify me to say the courts got it wrong as a matter of law. I’m thinking bigger picture, as in the way the world should work. Luckily, as I was searching for more examples of courts screwing up the basics (which were far too easy to find), I also found some in which the court got it right or higher courts slapped down stupid lower court decisions. I will warn you that this issue is long because my love of case law comes from the high school lectures of Dolores Meyerhoff and the college classes of Sheldon Goldman, both of whom were master storytellers and always started with the details of the case to get us invested before explaining the court’s decision.
Also, before we dive in, please check out my latest article for Rewire News Group—blaming anything on sex addiction is one of the ways the police officers in Atlanta (not to mention Hollywood movies, the media, and celebrity publicists) got it wrong, because sex addiction doesn’t exist.
Minnesota Supreme Court: It’s Not Felony Rape Because She Got Drunk Voluntarily
Sometimes in cases where both the victim and the alleged perpetrator were drunk there is some ambiguity about whether sex was consensual. This is by no means what happened in the Minnesota case; the facts here are very clear cut and a jury already found them believable beyond a reasonable doubt.
The victim was 20 years old in 2017 when she and a friend tried to get into a bar in Minneapolis. She had already had five shots of vodka and taken an unnamed prescription drug. The bouncer declared her too drunk to go in. The man convicted in this case, Francios Momolu Khalil, who was 24 at the time, was outside the bar with friends and offered to take the victim and her friend to a party.
They drove to a house where there was no party and, according to testimony of the friend, the woman instantly lay down on the couch and fell asleep. She woke up to find Khalil raping her and told him she did not want to have sex to which he allegedly replied, “But you’re so hot and you turn me on.” She passed out again and woke up early the next morning with her shorts around her ankles. She went to the hospital for a rape exam that afternoon and went to the police a few days later.
In 2019, a jury found Khalil guilty of third degree sexual misconduct which can carry a sentence of up to 15 years in prison and a $30,000 fine. He was sentenced to prison (where he has been since his conviction) but his lawyer filed an appeal arguing that the trial judge’s instructions to the jury did not accurately explain the law as written. The lawyer pointed to language in the state law that says a person who is drunk or high is only incapable of consenting if the substances were “administered to that person without the person’s agreement.” So, Bill Cosby and the predators who put roofies in people’s drinks can be convicted, but the guy who stumbles across a woman passed out at a party and decides it’s a perfect time to have sex with her is in the clear.
The Minnesota legislature was poised to fix this loophole in 2019 but voted instead to empanel a working group. A bipartisan bill that came out of that group is in front of the House now. It would expand the definition of “mentally incapacitated” to include “voluntary intoxication.” Representative Kelly Moller, the chief author of the new bill, told the Washington Post that 10 million women have been raped while drunk and most of them became drunk voluntarily but that doesn’t make what happened to them any easier. And, even if her bill becomes law, she explained, the state will have to prove that the perpetrator knew that the victim was too drunk to consent which is a high burden to prove.
In the meantime, however, the Minnesota Supreme Court overturned the conviction and granted him the right to a new trial: “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.” Under the current law, Khalil can only be charged with fifth degree sexual misconduct, which is a gross misdemeanor that carries only a one year sentence and a $3,000 fine. As Moller said, that kind of conviction and punishment “is almost insulting to the victim.”
State laws around rape have been evolving for years. Among other things, victims (or the state on their behalf) traditionally needed to prove that the perpetrator used forced and that they, the victim, actively tried to resist. As our understanding of consent has changed so have some of these laws. Still, if as of 2016, 40 states tell those who got drunk voluntarily that their sexual assault was, essentially, their own damn fault, we have a long way to go.
If legislators across the country want to better understand rape and consent, I recommend this video about tea.
Court Finds for College Professor Who Refused to Honor Personal Pronouns
A few years ago, Professor Nicholas Meriwether was reprimanded by Shawnee State University, a small public university in Ohio, because he refused to refer to a student as “she or her” despite the student’s repeated requests. Last week, the court sided with the professor and said he had the right to sue the university over his unfair treatment.
On the very first day of class, Meriwether referred to the student, known in court proceedings as Jane Doe, as “sir.” She approached him after class to say she uses female pronouns and asked him to do the same. He refused, saying that his Christian faith prevented him from talking about genders in ways that conflicted with his personal beliefs. It is unclear what he based his personal beliefs about Jane Doe’s gender on (other than appearance) as he had no additional information about her sex or gender identity before this immediate refusal.
After a long investigation and threats by the student to sue, the university reprimanded Meriwether, saying that he created a hostile environment and violated the school’s non-discrimination policy. The official letter in his file said that if he continued to do so he could be put on leave or fired.
The professor sued the university saying the school violated his constitutional right to free speech. In an op-ed published by The Hill, Meriwether argued that he was a victim of a leftist regime that is a threat to academic freedom as well as free speech. In that article Meriwether repeatedly and purposefully misgenders the student and says that while he is willing to use whatever first name a student asks for: “What I cannot do, however, is to speak in such a way that implies that a man is a woman or a woman a man. In other words, to refer to a student in such a way that I imply something that is not true, that I know to be false, to effectively lie, and so violate my conscience as a philosopher and as a Christian.”
Meriwether inevitably likened the student’s request to be called “she” to asking a Jewish professor to address a neo-Nazi student with a “Sieg Heil.” Sorry, Nick, but the Nazi trump card doesn’t work here.
Except maybe it did. Though a lower court dismissed the case, Meriwether appealed, and last week the Sixth Circuit Court of Appeals took his side. In a 32-page opinion, not surprisingly written by a Trump-appointee, the court wrote that the university “silenced a viewpoint that could have catalyzed a robust and insightful in-class discussion.” The decision concluded: “Since Meriwether has plausibly alleged that Shawnee State violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, his free-speech claim may proceed.”
This is a dangerous precedent that can only add to the hate and discrimination already being felt by so many in the trans community. We lose nothing by calling someone by their personal pronouns, they lose so much when we refuse.
Court Refuses to Use Defendant’s Personal Pronouns
Pronouns also became an issue in a case before the Eighth Circuit Court of Appeals. Judge Steven Colloton, writing for the majority, declared using “they” to mean a singular person was just too damn confusing and that the decision would be written using masculine pronouns regardless of what the defendant would prefer.
To be fair, the facts of the case don’t make our defendant, Shawn Kelly Thomason, look all that innocent and the petition for a new trial seems like the defense is grasping at straws using really fancy language.
Thomason and the victim, known only as JNS, had a relationship. She ended it and moved out of state saying she didn’t want any additional contact. Thomason then drove across state lines, put a tracking device on JNS’s car, and ultimately approached her outside her home. JNS called the police who “found a handgun, a taser, electrical tape, women’s clothing, and writings that included notes to JNS” in the rental car and concluded Thomason had a plan to kidnap the victim.
Thomason was arrested and subsequently pleaded guilty to one act of interstate stalking and was sentenced to 45 months in prison followed by three years of supervised release. Thomason was also ordered to pay approximately $8,000 in restitution to the victim.
In appealing the sentence, lawyers argued that prosecutors committed misconduct by misgendering Thomason after being told that the defendant used “they” and “them” as personal pronouns.
The court rejected this argument along with five others and it may have been right to do so (as I said, I’m not a lawyer and I don’t play one on TV). But the rationale behind this part of the rejection is lame at best. The judge wrote: “As the filings in this case illustrate, clarity suffers and confusion may follow when legal writing refers to a single individual as “they,” especially when the materials advert to other actors who are naturally described as “they” or “them” in the traditional plural.”
I admit it, I stumbled over Thomason’s pronouns a few times as I wrote the explanation of what happened. Part of the challenge was that the transition to “they” “them” pronouns happened after the events in question, meaning much of the initial reporting used “he/him.” But I managed and as Joe Patrice, who is a lawyer, writes for Above the Law, courts should be able to figure it out, too:
“Yes, it would render the whole opinion unintelligible except for the fucking context. Moreover, if using a specific pronoun creates the occasional awkward sentence — “they” can admittedly hit the ear inelegantly when paired with “to be” — there are many alternative phrasings from “Thomason is” to “the defendant is” to “the appellant is” to “the prisoner is.”
And, yet, instead of even trying, the court said, in a footnote:
“Consistent with the proceedings in the district court, and for the sake of clarity, we use masculine pronouns when referring to Thomason in this opinion.”
As Patrice points out, the court could have easily rejected Thomason’s argument without also slapping all transgender or nonbinary people in the face for wanting language that reflects who they are:
“Just say, ‘defendant’s claim is rejected because, upon being informed of the defendant’s personal pronouns, the prosecution made every effort to adhere to defendant’s wishes and we find that this was enough.’”
Alas, they chose the dickier way to do it.
Same-Sex Adoption Decision Based on Definition of “Wife” Overturned
I promised to end on some good news and here it is. On Friday, the Nebraska Supreme Court overturned a lower court’s decision that denied a same-sex couple’s petition to adopt a three-year-old child they’ve been raising since birth.
The lower court judge argued that he could not grant the petition because it described the married couple as “wife” and “wife.” According to the judge, the legal definition of “wife” is “a woman who has a lawful living husband.”
In its ruling striking down this decision the Supreme Court explained that adoption law does require a petitioner’s legal husband or wife to be on the adoption petition in order for them to have standing as a parent if the petitioning parent should die. But in no way should this mean that same-sex married couples are prevented from adopting together. The court added that state law clearly allows for any adult or adults to adopt a child.
This case reinforces the Nebraska Supreme Court’s support of same-sex adoption. In 2017, it struck down a 1995 policy that prevented same-sex couples from becoming foster parents or adopting children who were wards of the state. In that decision the court wrote: “Memo 1-95 was a published statement on DHHS’ official website that “heterosexuals only” need apply to be foster parents. It is legally indistinguishable from a sign reading “Whites Only” on the hiring-office door.”
And that, my friends, is proof that courts can get it “right.”