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An unexplained groping loophole in Minnesota law is about to be closed

The Minnesota State Capitol in St. Paul. (Glen Stubbe/Star Tribune/AP)

In Minnesota, like the rest of the country, plenty of people recognize that groping someone’s buttocks without their consent is not okay. Even the allegation of groping has brought serious consequences for some high-profile figures in the state.

Al Franken, Minnesota’s former senator, resigned earlier this year after several women came forward with claims that he grabbed their buttocks while they posed for photos with him. A former state senator also recently stepped down after he was accused of groping a female candidate’s behind at a political event. (Both men have said, with varying degrees of equivocation, that they remembered their encounters differently than their accusers did.)

But there’s no law against in Minnesota against deliberately touching someone’s backside without permission, as long as it’s clothed. In fact, the state’s main sexual conduct statute specifically exempts “intentional touching of the clothing covering the immediate area of the buttocks” from criminal sexual conduct.

This loophole has been on the books since 1988 — not very long, in the grand scheme of things, but long enough that there’s ambiguity over how it got there. Now the legislature is taking steps to make sure that this type of inappropriate grabbing will be treated as a crime in the North Star State.

On Thursday, a state Senate committee approved a measure to get rid of the exemption and make groping of the buttocks a misdemeanor punishable by up to a year in prison and a $3,000 fine, as the St. Paul Pioneer Press reported.

Many Minnesotans appear to have known nothing of the gap in the law until it came up in the legislature recently. It’s not clear exactly what spurred lawmakers into action, but written testimony from a Columbia Heights, Minn., woman helped shed light on the issue.

The woman told state senators that she was with her young children and husband at a fitness center in November when a man “walked up behind me and fully groped my buttocks,” according to Forum News Service. After speaking to fitness center managers and police, she learned that the man couldn’t be charged for touching her inappropriately.

The same day, the same suspect grabbed four other women at the fitness center, according to the testimony. He was eventually charged with disorderly conduct but only because he went into the women’s locker room, the Pioneer Press reported.

“Unfortunately, this experience at [the health club] was not my first experience with sexual assault,” the woman testified. “And I can tell you that being groped on the buttocks is just as demeaning, violating and traumatizing as the other forms of assault I have endured.”

Consider this among the many other reasons people often wait months, years or even decades to report sexual misconduct: sometimes, even in seemingly clear-cut cases, the law protects the predator.

The Minnesota legislature’s attempt to close the grabbing loophole comes as a wave of women and some men have gone public with accounts of sexual misconduct at the hands of powerful figures in a range of industries and professions. The #MeToo movement has turned into a moment of national reckoning, and state legislatures have not been left out.

Sexual misconduct laws vary greatly from state to state, but Minnesota appears to be the only state whose statutes give a pass to unwanted touching of the buttocks. The provision was passed as part of a broader — and ostensibly well-intended — criminal sexual conduct law approved in 1988. How exactly it got included, no one seems to remember.

State Sens. John Marty and Carolyn Laine, both of the Minnesota Democratic-Farmer-Labor Party, who are co-sponsoring the measure to get rid of the exemption, told local media this week that they struggled to find an answer for why it exists. One explanation, they said, was that lawmakers at the time wanted to create leeway for football coaches who were worried they would be accused of crimes for giving players a motivational smack on the rear. Some in law enforcement had taken to calling it the “coach’s exemption,” they told the Pioneer Press.

Of course, sex crime laws across the country allow for this without a special exemption. As long as the pat on the behind is consensual or not delivered with any sexual intent, it’s hard to imagine it resulting in any criminal charges.

Marty, from Roseville, Minn., was among the original co-sponsors of the law, though he told Valley News Live that his role was limited and that he didn’t write the exemption. He said the legislation marked an important step forward at the time.

“It was the first time we were saying, ‘Groping is illegal,’ ” he said.

Still, he added, people were more forgiving then than they are today of certain types of sexual misconduct.

“‘Oh, boys will be boys,’ that was the old attitude,” he told Valley News Live. “So it’s a long time after we should be cleaning these things up.”