A101 targets predatory sexual assault

James Fogel is completely off base in his January 22, 2026, letter (“Mr. Dinowitz: please rethink your legislation”). He mistakenly believes that participants in “drunk sex” or “regret sex” could be prosecuted for rape under A.101/S.54 (Dinowitz/Fernandez). In fact, the bill’s language was carefully crafted to be identical or nearly identical to the language of the laws of more than half of our country’s states, including statutes that were enacted more than 20 years ago. The experience in other states is instructive: the number of rape prosecutions has gone down substantially as predators learn of the laws.

The bill’s language targets intentional predators who assault someone who is heavily under the influence of alcohol or drugs. The reason the Dinowitz/Fernandez bill doesn’t criminalize sex between two drunk people, and the reason why such a case would not be prosecuted, is simple: the bill requires the prosecution to prove that the victim was severely intoxicated, to the point of incapacitation, AND that the victim’s incapacitated condition was so obvious that it was known or reasonably should have been known to someone “in the defendant’s situation.” Those key words require jurors to consider the defendant’s condition. If a defendant was also intoxicated, that intoxication is part of the “situation” that jurors must consider. Jurors can only convict if the prosecution proves that even someone in the defendant’s situation would still have known that the victim was incapable of consent.

The January 9th sentencing at Bronx Supreme Court of two off-duty cops who three years ago carried a severely intoxicated woman from Zona de Cuba and sexually assaulted her in a nearby apartment, illustrates why A.101/S.54 needs to be enacted. Both defendants pled guilty to misdemeanors and received, respectively, six years of probation and one year of probation. Neither received any jail time, despite DNA from both defendants found on the victim and her testimony before the grand jury. I watched the victim give an impact statement at the sentencing at which she described her fear since the assault and stated that “the ones who promised to serve and protect took away my dignity.”

Unfortunately, reported rapes in the Bronx increased by 27% in 2025 over 2024, with many of the victims being voluntarily intoxicated. Nationally, only 5% of reported rapes result in convictions, and sexual assaults of Black and Brown women are the least likely to result in convictions.

Enactment of A.101/S. 54 would protect victims and prevent many incidents of this predatory crime. I urge readers to write Assembly Member Dinowitz and Senator Fernandez to express your support for the legislation.

Sue Ellen Dodell, Esq.