It is a weird loophole in state law. And in keeping with a slew of bills that reverberate with the #MeToo movement, House Minority Leader Melissa Hortman, DFL-Brooklyn Park, wants it closed.
Minnesota Statutes Chapter 609.349 provides an affirmative defense against statutory rape in some cases.
Which cases? Those involving minors, people who are mentally or physically incapacitated or who are recipients of special transportation services. That is, if both people involved are married or living together in a sexual relationship. The affirmative defense disappears only when the couple is living apart or getting divorced.
That loophole first came to the attention of Hortman and her co-author, Rep. Mark Uglem, R-Champlin, during a pre-session forum earlier.
There a constituent described a case in which a woman was drugged—thus rendering her mentally incapacitated—and raped by her partner. Attempts were made to bring charges but they failed, Hortman told members of the Public Safety and Security Policy and Finance Committee on Wednesday.
“The prosecuting attorney had to dismiss the charges because of this statutory provision,” Hortman said. “It seemed to me that this particular section of law serves no purpose and that we should delete it from the statutes.”
Hortman’s bill, House File 3465, would require a handful of extra prison beds and cost about $100,000 over two biennia, according to its fiscal note. It was not voted on Wednesday.
However, it got a positive bipartisan reception in committee and was laid over for possible inclusion in an omnibus public safety bill. That gives it a solid chance of passing into law.
“There are still these little vestiges in law where women are somehow treated less than an individual human being with autonomy and rights, and more like property,” Hortman said in an interview. “As we find these, we need to eradicate them.”
Over in the Senate, another #MeToo-styled bill is gaining momentum. Senate File 2491 is an attempt by Sen. Carla Nelson, R-Rochester, to require disclosure of financial settlements between elected sexual harassers and their victims.
Her bill would not eliminate nondisclosure agreements (NDAs)—victims sometimes want those as much as perpetrators. But it would forbid “imposed” settlements contingent on nondisclosures. In other words, both parties would have to agree to the NDA up front, she said.
Even then, Nelson said, the amount of money trading hands would have to be made public. Where nondisclosure agreements do not exist and settlements are made, the bill would require full disclosures. It also would require annual reports from the Legislature, state agency heads and local governments, disclosing any sexual harassment monetary settlements.
“The bill aims to stop and deter, through accountability and transparency, employee misconduct,” Nelson said.
It cleared the Senate Judiciary and Public Safety Finance and Policy Committee with a unanimous voice vote on March 27. It was the forwarded to the Senate Rules Committee.
Lots of bills
Caroline Palmer testified for both bills. In fact, she has testified a lot this session. The public and legal affairs manager for the Minnesota Coalition Against Sexual Assault said she has made a personal record number of committee appearances in 2018. She has worked at MnCASA for a decade.
“I think that does in part have to do with the movement around #MeToo,” she said. “People seem very motivated to address these changes.”
Indeed, many #MeToo-styled bills have appeared, some making more progress than others. The list below excludes is not exhaustive; many others dealing with child custody, sex trafficking, pornography and other matters could arguably be added. But here are some of the #MeToo-related bills we are watching this session:
Only four of bills mentioned in this article have cleared at least one committee. Three others have had only informal hearings. The rest—and many other bills unmentioned—have made no progress. But to Palmer, that is no sign that the session is a bust.
Even stalked bills have launched a dialogue that could continue into future sessions, Palmer said. Meanwhile, several arguably related bills not highlighted here—requiring better handling of rape exam kits, for example—are making progress.
“Overall, I think we have been really happy with the conversation that has been going on,” Palmer said. “Legislators have been really receptive and, I think, paying attention to this issue in a really exciting way.”
But Hortman gives her colleagues less congratulatory marks. She notes that more sexual assault bills have made headway than sexual harassment measures. None of the anti-harassment measures heard by the new subcommittee, for instance, has been forwarded to House Rules.
Sexual assault bills fit the GOP majority’s law-and-order paradigm so, to Hortman, they are a lower-hanging fruit for Republicans. Sexual harassment is a more nuanced and challenging issue—and one that deserves more than lip service from the GOP majority, Hortman said.
“The real judge of whether people are taking an issue seriously is whether they do something,” Hortman said. “So I am disappointed at where we are in the session.”
House Majority Leader Joyce Peppin, R-Rogers, chairs both the subcommittee and its parent, House Rules. She expressed surprise at Hortman’s comments and said she, too, is disappointed—at the minority leader.
“I resent her statements; I think they’re out of place,” Peppin said. “Clearly, she has decided to make this a partisan political issue instead of working together to put together a comprehensive and bipartisan proposal.”
Still, she said, she won’t let that affect her subcommittee’s mission. “We are going to continue to work on this,” Peppin said.
In five meetings, the panel has heard from some 25 legislators and expert witnesses—including the ubiquitous Palmer. Over the coming Easter break, Peppin said, staff will compile all that testimony and produce a proposal—possibly to modify House rules and procedures related to sexual harassment. It could also involve some statutory changes, she said.
Peppin was not ready to give specifics, but does expect to present her full proposal sometime in April.