Intoxication is not consent

It’s immaterial whether a person was intoxicated or not. If somebody was assaulted, then that’s something that needs to be dealt with.”

Assemblyman Jeffrey Dinowitz

Earlier this month, the Justice Without Exclusion Coalition, made up of several grassroots groups, including the Ruth Mullen Riverdale Huddle, visited Albany in their continued fight for survivors of sexual assault.

As it stands, anyone who is sexually assaulted or raped while willingly under the influence of drugs and/or alcohol, is not protected by the law in New York State, also known as the “voluntary intoxication loophole.”

“It’s disgusting,” former NYS Senator Alessandra Biaggi told The Press in a heartfelt and impassioned interview. “Survivors are told, ‘sorry, there’s nothing the law enforcement can do for you because of this loophole.’”

Biaggi spearheaded the bill, currently on the Assembly floor as A101, in 2020 after she was approached by NBC investigative reporter, Chris Glorioso, who was steeped in reporting on these cases.

At the time, Biaggi did not know the loophole existed, like many others, but fought for the cause and worked to get it passed before she left the senate.

“It seems like a bad episode of The Twilight Zone, but we persist regardless,” Chris Lake said, executive director of the grassroots group, Community for a Cause, which is also part of the coalition who spent all day in meetings with elected officials earlier this month, hoping to stress the importance of passing this bill which remains stuck on the Assembly floor after passing the Senate.

If passed, the bill will “Prohibit the use of intoxication of the victim as a defense in sex crimes where the victim is under the influence of any drug, intoxicant or other substance to a degree which rendered the victim temporarily incapable.”

Despite being sponsored by dozens of assemblymembers and scores of other elected officials, there is still opposition to the bill.

The National Association of Criminal Defense Lawyers, along with the Legal Aid Society and several defender groups wrote a letter in June 2024 in direct opposition to the bill.

In their open letter, the NACDL argued that this new law will make it easier for a consenting adult to make false accusations should they change their mind after a night of heavy partying or should they experience sudden remorse.

However, false accusations already exist and the National Sexual Violence Resource Center found that less than 10 percent of rape allegations are false.

Furthermore, the NACDL wrote that New York law already protects individuals that do not give consent, but the language in the law specifies, amongst other stipulations, that the victim must be “physically helpless” or “mentally incapacitated.” The former is defined by the New York State Unified Court System as someone who is unconscious or for any other reason, physically unable to communicate their unwillingness to an act. While mentally incapacitated is defined as someone who lacks the mental ability to understand, retain, process and communicate information often due to a medical condition or severe mental illness.

This language fails to protect someone who may still be alert, but unable to give consent. And even in the case of someone who is unconscious, the law does not necessarily prevail.

In 2015, Brock Turner, a 19-year-old student at Stanford University raped a 22-year-old woman who he knew from school and who was completely unconscious at the time of the assault. Turner was stopped by two fellow students who held him until police arrived. Turner was found guilty of three felonies but only served three months of a six-month sentence.

New York is not the only state grappling with this legal loophole. In fact, several other states have already made significant progress in addressing the issue. Minnesota passed legislation in 2021 to close the voluntary intoxication loophole.

Other states like Michigan, Iowa and Alabama already have laws in place that allow for prosecution in cases of sexual assault involving intoxicated victims, regardless of whether the intoxication was voluntary or not.

And despite crime in New York City being on the decline across the board, rape has increased from December 2023 to December 2024, according to data on NYC.gov.

Assemblyman Jeffrey Dinowitz is the chair of the New York State Assembly's Standing Committee on Codes and other politicians have pointed to him as standing in the way of the bill becoming law.

However, Dinowitz told The Press, “If only I had the total power to pass whatever bill I would like, but I don’t.” He added, “It’s immaterial whether a person was intoxicated or not. If somebody was assaulted, then that’s something that needs to be dealt with.”