Voluntary intoxication loophole bill takes another go

Under current New York state law, perpetrators accused of rape can use intoxication as a defense when victims voluntarily become inebriated.

The use of this defense has led Assemblyman Jeffrey Dinowitz and state Sen. Nathalia Fernandez to introduce legislation that would eliminate this loophole in the rape statute. For Dinowitz, it isn’t his first attempt at closing this loophole. In fact, last year when former state Sen. Alessandra Biaggi co-sponsored the bill with Dinowitz it failed to pass due to different language in the two versions of the bill at the end of the legislative session.

The two current sponsors of the legislation met at Foley Square on Oct. 26 at a press conference, alongside Assembly members, advocacy groups like Rape, Abuse & Incest National Network and survivors like Miss New York Rachelle Di Stasio, to urge the passage and signing of the bill and join 14 other states in closing the loophole.

“It’s been a horrible experience to view countless times how victims, victims of rape, are not getting justice, are being blamed for none  of their actions,” Fernandez said Oct. 26. “It’s atrocious that New York state is still allowing this to happen.

“And it’s sending a dark message that women and men, you have one drink, you can get raped, and justifiably so.”

Assemblyman Dinowitz explained to The Riverdale Press the legislation was introduced as a reaction to cases of sexual assault where district attorneys were not willing to prosecute perpetrators because a victim voluntarily got themselves inebriated.

“The basic premise of the legislation is that having a few drinks is not a permission slip for somebody to sexually assault you,” Dinowitz said.

Lizzie Asher, president and co-founder of Cura Collective, said they intentionally organized the Foley Square press conference ahead of the legislative session which starts in January.

“It is rather shocking for most people that in fact the law in New York State reads anyone who has had a drink, a drink too many, who is assaulted, that drink is tantamount to giving our assailant a ‘get out of jail card’ if you’ve been raped,” Asher told The Press. “Because the way that the law is written right now it specifically requires that if you are somehow intoxicated you have to have become intoxicated unwillingly.”

The reason for that law dates back to 1990s, when there was an increasing awareness of date rape drugs being used on college campuses and bars, explained Chris Lake, executive director of Community for a Cause.

“It was unfortunately an unintended consequence because laws are responsive,” Lake said. “There’s a crime that happens, we sit down and say how to prevent it from happening in the future.”

Lake explained how the law was written to target those whose drinks were drugged or were fed too much alcohol, AKA were unwillingly intoxicated. However, the law left out victims who drank of their own volition and then were sexually assaulted.

Next year will mark the 15th anniversary of an inebriated woman who was taken home by two male NYPD officers who then allegedly raped her. In that case, Asher explained, the Manhattan DA took the case on principle, knowing the law would not be on his or the victim’s side. While the two men were charged with misconduct, they were acquitted of rape in 2011.

It is cases like this why Dinowitz and Fernandez hope to amend the law in 2024. The bill passed the Senate earlier this year and is currently in an Assembly committee. However, the piece of legislation is not exactly new. It was first introduced by then state Sen. Alessandra Biaggi in 2019, then sponsored by Dinowitz. The legislation hit a number of hurdles that prevented it from passing year after year.

The Press previously reported in 2021 that Dinowitz declined to bring the bill up for a vote in the Codes Committee, which he chaired, because of concerns from colleagues that the bill wouldn’t protect those falsely accused of sexual misconduct.

In 2022, the bill failed to pass due to the language in the Assembly version of the bill and Senate version not matching with each other. Biaggi claimed then that Dinowitz amended the bill but did not consult her, the community, advocates and DA’s.

“He amended the bill without our knowledge, and put in the standard that is extremely harmful to survivors of rape, which is something that doesn’t even really exist in law,” Biaggi said to The Press then. “He created something called ‘extreme intoxication,’ which has no definition anywhere. It makes the standard of proof really high for survivors of rape.”

Similar language exists in the summary of the current-day version of the bill, where the words “extreme influence” are used in the language.

When asked what happened back then, Dinowitz said, “I think in both houses the languages was changed somewhat. In the Assembly, there was a tweak in the language which was done in the hopes of getting it passed more easily. Since it didn’t pass with that change, my attitude is I would rather go back to the sort of best possible version of the bill.”

In addressing previous concerns people had of Black men being historically accused of rape as a reason of not passing the legislation, Dinowitz said that its always a concern that’s out there, but that they are overblown in terms of the bill.

“We’re dealing with a narrow sense of circumstances,” he said. “I don’t think most people who (make rape accusations) are making it up. I’m not saying that nobody ever lies but I think in almost all cases people just don’t make that up. That’s what I believe. I don’t want to see the bill not come up because people come up with outlandish scenarios as for why we shouldn’t do it.”

The Assemblyman said he will continue to try to get as much support for the bill that he can,  including getting more sponsors.

“I am proud to co-sponsor this crucial legislation led by Assemblyman Dinowitz and Senator Fernandez to close the intoxication loophole for rape,” Assemblyman Andrew Hevesi  of Queens said in a statement to the Press. “There is never any justification for rape and it is disgusting that our law currently allows for one. Closing this loophole will prevent further victimization of survivors, correct a glaring error in our existing law, and provide a pathway to justice.”

It also has the support of numerous district attorneys, community and advocacy organizations like Cura Collective, Safe Horizon and RAINN. The current Assembly version of the bill matches the Senate’s version, which has already passed.

Both Lake and Asher emphasized that the loophole isn’t just an issue that affects women.

“The fact a person drank or took drugs or got something put in a drink should not determine if there’s justice,” Dinowitz said. “I think it’s a simple matter of doing what’s right. Just because you are intoxicated, doesn’t give somebody the right to assault you.”