Last week, the Minnesota Supreme Court ruled that a person can’t be found guilty of sexually assaulting someone who cannot consent because they are mentally incapacitated due to intoxication if that person became intoxicated by voluntarily ingesting drugs or alcohol.

In this case the victim was so drunk that she was denied entrance to a bar. Outside that bar, the victim was approached by her rapist who invited her to a party where there was alcohol. Instead of a party, he took her to a private home, where she blacked out and woke to being raped. The victim told her rapist to stop and then blacked out again. The Minnesota Supreme Court ruled that her rapist could not be found guilty.

This cannot stand. If I have any voice, I will use it to speak against this.

How could a Supreme Court rule that a sexual assault on someone who cannot give consent is anything other than rape?

The answer is sadly that we have undermined the idea of what consent is, and what actions require consent.

Consent is when you, absent coercion, agree to be touched, to surrender property or to comply with the proposals of another. In order for you to give consent, you have to be informed truthfully as to the outcome of your consent. Some outcomes of your consent might be unknown — so long as you are informed about an uncertain outcome, you can still consent.

This is a pretty simple concept. If we were to have a culture that respected consent (#ConsentCulture) we’d have a less violent world. As a nation, we used to understand consent better. Consent is required by the Fourth Amendment. The government is specifically instructed to not search you nor take things from you without your explicit consent “but upon probable cause…” If you’re reasonably suspected of having stolen a car, the police can look in your garage without your consent. They can’t go up and down the street searching in everyone’s garage.

The Fifth Amendment is also about consent. The government cannot make you testify against yourself without your consent. Similarly, the Fifth Amendment goes on to say that without consent or due process, you cannot be “deprived of life, liberty or property.”

Consent is the critical element to how the American Experiment is supposed to work. The founders gave us a Constitution which speaks to the idea that a critical guarantee of our liberty is the requirement that our consent (or lack thereof) must be respected.

There are already lists on the internet of things that some women do when they go out to stay safe that no man has ever done. We have a culture where acceptance of phrases like “boys being boys”  has been used as an excuse for unwanted touching and behavior that lacks consent. Even with the rise of the #MeToo movement and some small amount of accountability rising in our culture, no one is talking about the absence of consent also means no. Biden and Trump both have numerous public examples of touching people without their consent. Because they are politicians, supporters of those candidates undermined the idea of what consent actually is, putting politics before people. Governor Andrew Cuomo of New York has clearly, beyond any shadow of a doubt, touched many women without their consent. And yet, his political supporters make excuses and weaken the idea of what consent is.

Our youth are growing up and learning that if they’re powerful enough, they can touch someone without their consent, just like Donald Trump, Joe Biden and Mario Cuomo.

We need to change this at the cultural level. Consent shouldn’t be about politics, it must be about culture. We need to advocate for #ConsentCulture everywhere. We must champion the belief that there is NEVER a justification for any person or government official to deprive someone who has done nothing wrong of their life, their liberty, or their property.

Please join me in making the hashtag #ConsentCulture spread everywhere. If the law in Minnesota says that someone can be raped because the victim could not consent to have sex due to intoxication, then the law is wrong. We fight that by promoting a culture of consent that cannot be undermined by laws or executive actions. If you want to help us in our fight, maybe now’s the time to become a member of the People For Liberty.

If you or someone you know is looking for resources dealing with Sexual Assault, this is a good place to start.

Dan Fishman
Executive Director
People For Liberty

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