MSBA President Dyan Ebert, in consultation with the MSBA Fair Response Committee, has issued this statement on the Minnesota Supreme Court's decision in State of MN v. Khalil

“The proper role of the judiciary is one of interpreting and applying the law,

not making it.”

Former Supreme Court Justice Sandra Day O’Connor

On March 24, 2021, the Minnesota Supreme Court issued the unanimous decision, authored by Associate Justice Paul Thissen, in State of Minnesota v. Khalil, in which the Court determined that for purposes of felony third degree criminal sexual conduct the statutory definition of “mentally incapacitated” in Minn. Stat. §609.341, subd. 7 (2020) did not include circumstances where an individual voluntarily ingested alcohol and became intoxicated before being sexually assaulted. In reaching its decision, the Court referred to the plain language of the statute which provides, “mental incapacity 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 conduct or sexual penetration.” The Court’s decision resulted in the reversal of the third degree criminal sexual conduct conviction of defendant Kahlil and the case was remanded back to the district court for a new trial.

In the days since Khalil was issued, some have claimed that the Supreme Court, in general, and Justice Thissen, in particular, determined that sexual assault of an intoxicated person is not illegal. These claims misstate and misinterpret the Court’s decision. The Khalil decision was limited to the interpretation of the term “mentally incapacitated” as defined by Minn. Stat. §609.341, subd. 7 (2020).

The power to change the language of the statute, including how the term “mental incapacity” is defined, is within the authority of the Minnesota Legislature, and not the Minnesota Supreme Court. 

Dyan J. Ebert

MSBA President, 2020-21