The Loopholes.
How it works
Sexual assault laws list situations where a person can't legally consent, such as being unconscious, physically unable to resist, or "mentally incapacitated". Intoxication usually falls under mental incapacity.
- In most states
- Mental incapacity covers anyone too impaired to understand or control what's happening, however they got that way.
- Loophole states
- Only covers someone who was drugged or given alcohol without their agreement.
So if someone chose to drink, the law may not treat them as incapacitated, even if they ended up too drunk to understand what was happening. Prosecutors can sometimes bring charges another way, for example when the victim was unconscious or the attacker used force. But a victim who was awake and too intoxicated to consent can fall through the gap.
Real cases
Minnesota: State v. Khalil (2021)
A 20-year-old woman had been drinking and took a prescription narcotic when she was turned away from a bar. Men offered her and a friend a ride to a party. There was no party, and at a house, Francios Khalil sexually assaulted her. He was convicted of third-degree criminal sexual conduct on the theory that she was mentally incapacitated.
On March 24, 2021, the Minnesota Supreme Court unanimously overturned the conviction and ordered a new trial. As the law was written, the court held, "mentally incapacitated" applied only when alcohol or drugs were given to the victim without her agreement. She had chosen to drink, so that part of the law didn't apply. The ruling drew national attention, and the Legislature changed the law within months.
Texas: the Summer Willis Act (2025)
Summer Willis was a University of Texas student when she was assaulted after being given a drink at a fraternity party. Years later, she learned that Texas law likely wouldn't cover her case. It counted intoxication only when the attacker had drugged the victim, and in her case, one person gave her the drink and another assaulted her.
She campaigned to change the law, including running 29 marathons in one year to raise awareness. In 2025, the Texas Legislature passed HB 3073, named the Summer Willis Act.
The Texas Tribune: Texas lawmakers update sexual assault laws
States that fixed it
Minnesota, Michigan and Texas have closed the loophole since 2021, each with a single bill. Any of them can serve as a model for the 19 states that haven't.
2021 - Minnesota
Months after Khalil, the Legislature's 2021 public safety law kept the old definition of "mentally incapacitated" and added a second one: a person under the influence of
any substance or substances to a degree that renders them incapable of consenting.
It took effect September 15, 2021.2021 Minn. Laws 1st Spec. Sess. ch. 11 · Minn. Stat. § 609.341, subd. 7
2023 - Michigan
Senate Bill 236 deleted the words "administered to that person without the person's consent" from the definition of "mentally incapacitated." It passed 38–0 in the Senate and 105–4 in the House, and Governor Whitmer signed it on July 11, 2023.
2025 - Texas
The Summer Willis Act replaced the requirement that the attacker drugged the victim without their knowledge. Now it's sexual assault when the attacker knows the other person is
intoxicated or impaired by any substance to the extent that the other person is incapable of consenting.
Governor Abbott signed it on June 20, 2025, and it took effect September 1, 2025.
What a fix looks like
The three states took slightly different routes, and lawmakers elsewhere can use any of them:
- Add a second definition that covers incapacity from any substance (Minnesota).
- Delete the "without consent" requirement from the existing definition (Michigan).
- Rewrite the offense around whether the attacker knew the victim was too impaired to consent (Texas).