Criminal Sexual Conduct - New Ruling on "Mentally Incapacitated"

Michigan Criminal Sexual Conduct (CSC) case rulings by the Michigan Supreme Court and Court of Appeals have been released at a rapid pace lately. Now, a controversial new Criminal Sexual Conduct ruling handed down by the Minnesota Supreme Court on March 24, 2021, has been the source of much recent publicity, and it seems to have angered advocates for victims of Sexual Assault. For the past week, the media online and elsewhere have been flooded with angry claims that this ruling somehow turns a blind eye to victims, but is this really the case, or are people just jumping the gun without knowing the facts?

CLICK HERE for the Minnesota Supreme Court’s new Criminal Sexual Conduct ruling on “mentally incapacitated,“ issued March 24, 2021.

As a Michigan Criminal Sexual Conduct Attorney, I defend those falsely accused specifically of CSC every single day. So naturally, I took an interest in this ruling, and read the 29-page complete Opinion in this new CSC case, State of Minnesota v. Francois Momolu Khalil, Case No. A19-1281. The ruling is actually very straightforward, and it does absolutely nothing to take away the justice due a victim of a Sexual Assault, assuming they are, in fact a real victim - which only a jury can decide AFTER a trial. Frankly, what happened in People v. Khalil was that the Prosecutor simply failed to file the correct charge under law.

Because I am licensed to practice in Michigan and wouldn’t be able to take a case in another state without a special ruling from that Court. This ruling technically has no bearing on my Michigan Criminal Sexual Conduct cases that I defend and does not affect the Michigan Criminal Sexual Conduct laws.

But a few days ago, I tuned in to YouTube for the opening statements in the Derek Chauvin murder trial for the death of George Floyd. Before openings, I was listening to a news commentator who was reporting from outside of the Hennepin County Courthouse, and could barely hear the reporter because someone was shouting into a bull horn in the background "How irritating," I thought. Since I couldn’t hear the reporter, I figured I’d try to hear what this guy was shouting about.

Of course, I realized this guy was yelling about the new Criminal Sexual Conduct ruling, something to the effect of how wrong and unfair it was, and it just happens that this case originated in the same Hennepin County trial Court as the Derek Chauvin trial.

I couldn’t believe my ears when I heard this, as well as news reports and articles online. Everyone seemed to completely miss characterize the Court's ruling.

So, I just want to discuss briefly the reality of what this new Minnesota CSC case was actually all about, and the best way to do this is to analogize to the Michigan Criminal Sexual Conduct laws, including our different Degrees of Criminal Sexual Conduct, since Minnesota has a similar, but not identical, CSC framework.

The Defendant, Mr. Khalil was accused of approaching a visibly intoxicated woman in public, asking her and her friend to come back to his house for a "party," where the woman stated she thereafter woke up to Khalil engaging in sexual penetration with her.

Prosecutors charged Khalil with Minnesota’s version of what they call "Third Degree Criminal Sexual Conduct." At this point, let’s take a quick look at the Michigan Criminal Sexual Conduct scheme, from most serious to least serious:

Now that we understand the basics, you can easily see that just about any act that could be Criminal Sexual Conduct 1st Degree under Michigan law could also qualify as the less serious Criminal Sexual Conduct 3rd Degree. Sometimes, the Prosecution charges the most serious Degree possible right out of the gate, or sometimes they tactfully wait to increase a CSC 3rd Degree to CSC 1st Degree at the time of the Preliminary Exam, both of which can tend to improve their bargaining position.

The Minnesota laws are similar. I do not claim to be an expert on Minnesota law, but their Supreme Court's opinion on March 24, 2021, makes it clear that what their State calls "Fifth Degree Criminal Sexual Conduct" is likewise the "lesser included" of their more serious crime of Third Degree Criminal Sexual Conduct. We do not have "Fifth Degree" in Michigan.

What simply happened in the Khalil case was that the Prosecution charged him with Third Degree CSC under their law, which requires sexual penetration against someone's will, plus (in this instance) the added factor of "mentally incapacitated" as one of the possible variables, or ways, a person can be charged. The clear language of the law set by the Minnesota legislature defines "mentally incapacitated" as follows:

“Mentally incapacitated” means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration."

By comparison, Michigan defines "mentally incapacitated" as:

"Mentally Incapacitated" means the alleged victim "was unable to understand or control what they were doing because of drugs or alcohol given to them, or because of something done to them without their consent."

At Mr. Khalil’s trial, neither side disputed the fact that the woman involved voluntarily consumed the alcohol by her own choice. During deliberations, the Jury sent out a note asking the Court to clarify essentially whether the Defendant would be guilty of Third Degree CSC if the alleged victim's alcohol consumption was her own choice.

Despite what seems to be the clear language of the Minnesota definition of "mentally incapacitated," the Court instructed the Jury they could find the Defendant guilty even though there was no dispute she’d consumed the alcohol by her own choice. The Jury found Mr. Khalil guilty based upon that, and he appealed his conviction all the way up to the Minnesota Supreme Court.

While many seem to be up in arms, as if the Minnesota Supreme Court said that they condone Rape and Sexual Assault and people who are actually guilty should get away with it, all they really did was reaffirm that the Minnesota Legislature meant exactly what it said - "mentally incapacitated" under Minnesota law meant the alcohol or other intoxicant was administered to the alleged victim without their agreement.

RELATED: Click here to see an NBC News online article "Drunk Rape Victim Was Not 'Mentally Incapacitated,' Minnesota Supreme Court Rules."

In short, the Minnesota Supreme Court only reaffirmed what their law clearly says in its language. There is absolutely no basis for claiming that this somehow is in derogation of the rights of real Sexual Assault victims. If anything, the trial Court that instructed the Jury misunderstood the law.

RELATED: click here to see a fair characterization by Minn Post: "What last week’s Supreme Court ruling actually said - and didn’t say - about sexual assault and drinking in Minnesota."

What is more, the Prosecution apparently acknowledged that they could have charged Mr. Khalil with Minnesota’s lesser charge of "Fifth Degree Criminal Sexual Conduct," and there likely would have been nothing to appeal and his conviction would’ve been upheld. If anything, this may give Minnesota Prosecutors pause before deciding to charge the most serious Degree they believe they can.

All feelings aside, whether you’re on the Defense side, the Prosecution side, both sides, or no side, every American a citizen has an interest in making sure that Courts and Juries don’t convict people accused of Criminal Sexual Conduct where the evidence doesn’t meet the proper definition under the law they are charged with.

Simply put, it seems pretty clear that the Minnesota Supreme Court made the obvious and correct decision. Part of what makes a Court or a Judge a good Judge is their willingness to uphold the law exactly as it is written, without consideration for public criticism and media scrutiny from special interest groups and the like.

If you or someone you know is currently under investigation by Law Enforcement or currently charged in an active case in Court with Criminal Sexual Conduct in Michigan, contact Prain Law, PLLC, your knowledgeable, experienced, results-proven Michigan Criminal Sexual Conduct Lawyer.

Michigan Criminal Sexual Conduct Attorney Brian J. Prain of Prain Law, PLLC has been named one of America's Top 100 AttorneysBest Criminal Defense Attorneys in Detroit by, Nation's Top 1% by the National Association of Distinguished Counsel, one of the Top 10 in Michigan by the National Academy of Criminal Defense Attorneys, a D Business Top Lawyer, one of the Michigan Top 100 Criminal Defense Trial Lawyers by The National Trial Lawyers, featured in Super Lawyers, and much more due to his work in achieving repeated verdicts of NOT GUITY of Criminal Sexual Conduct.  

You can reach Prain Law, PLLC anytime at (248) 731-4543, or by using our online Contact Form.


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Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.