Justice? 3/28/21

Opinion by Richard Bleil

Recent news has me furious. Frankly, I’m not sure what to do about it, but injustice is really taken root in this country.

The story that has me most upset today is a decision handed down, by unanimous decision, by the Minnesota Supreme Court overturning a lower court and follow-up appeals court conviction of a rape. The defending attorney is claiming that had the decision gone the other way, there would have been no justice in any court trial, but justice for whom? Certainly not for the victim.

According to the news, a woman and her friend had been drinking and became intoxicated. As they showed up at what I assume is a second bar, they were denied entry because they were already drunk. A man and his friend invited them back to his place where he raped her.

There are two aspects of this case that truly concern me. The main one is the definition of being “mentally incapacitated.” It is rape to have sex with a person who is mentally incapacitated, but the definition of this term in Minnesota law does not cover those who become voluntarily drunk. It covers cases where, for example, a drug is slipped into the victim’s drink without her/his knowledge, but if you become drunk of your own accord, even to the point of being unable to give or deny consent, you are not considered mentally incapacitated. This is apparently a common definition in about 80% of the states (according to this news article), and a seriously flawed concept. In essence, what it’s saying is that if you decide you want to get drunk, your body is fair game for any rapist that wants to use it. This is disgusting. In a society that glorifies alcohol and being drunk, this definition of mentally incapacitated is woefully short-sighted.

The second thing that bothers me about this case is that, according to the articles, the victim did regain consciousness to discover that he was in the process of engaging in sexual activity with her and she did tell him she did not want to have sex with him. How, exactly, the Minnesota Supreme Court failed to acknowledge that she did say “no” is equally troubling to me. All I can figure out is that, after she said no (and he replied something to the effect of “but you’re so hot”) she must have passed out. So, after saying “no”, apparently if you pass out, your original statement is invalid. If you meant no, apparently, you should have stayed awake. This is antithetical to the concept that “no means no”. Apparently, in Minnesota, “no means until she passes out”.

As I write this, I’m literally sick to my stomach. The justices on the Minnesota Supreme Court are Chief Justice Lorie Skjerven Gildea, Associate Justice G. Barry Anderson, Associate Justice Natalie E. Hudson, Associate Justice Margaret H. Chutich, Associate Justice Anne K. McKeig, Associate Justice Paul C. Thissen, and Associate Justice Gordon Moore. If you’re keeping score, yes, four of the eight justices, including the Chief Justice, are women. And yet the decision was unanimous. Was this a decision to protect the victim, or to punish her for her decision to become drunk? Probably tens of millions of Americans, men and women alike, routinely decide to get drunk to some degree or another every week. Should we punish all of them?

In their decision, they wrote that they were interpreting the law as it is written, not as they might wish it was written. If this is true, then kudos to them. It’s the job of the senate to write the laws, and the court system to interpret those laws. And yet, in this particular case, this myopic defense of the decision still overlooks one crucial component. She did say no. Even if the law needs to be re-written for mentally incapacitated by voluntary drunkenness, she still told him no. Drunk or not, and whether or not she had the capacity to repeat the statement, she still made it. That should be more than enough.

This decision is incredibly dangerous and opens the floodgates. Every rapist that was convicted when the victim was drunk can now file an appeal based on this state supreme court decision. Worse, predators now have an “in”, a legally approved way to seek out drunk women, or get them drunk, who have had enough to drink that they cannot give consent to rape with impunity. After all, she didn’t say “no” after she passed out.

The war on women is real. It’s alive, and women are losing. I hope you’ll forgive me for ending this post here; I’m going to curl up in a corner and weep.

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