New York bill targeting voluntary intoxication loophole in rape cases faces renewed push amid stalled progress

This article was updated 5/6/26 to include new information. 

In New York, those accused of rape and sexual assault can cite a victim’s voluntary intoxication as part of their defense. A bill that aims to put an end to that possibility — which supporters call a legal loophole — has been introduced for the seventh time. But it once again faces a narrowing window to reach a floor vote.

Since being introduced in 2019 by former state Sen. Alessandra Biaggi, the bill, A101, has been championed by Assembly member Jeffrey Dinowitz — the bill’s sponsor — and the Justice Without Exclusion Coalition, which includes dozens of survivor advocate organizations. In the past, the bill failed to pass due to factors such as time constraints and concern for the potential overcriminalization of men of color. By April 30, the Senate version of the bill passed. The Assembly version still had not moved.

But proponents of the bill say recent incidents make its passage all the more urgent. Activists point to sexual misconduct accusations by several women, some of whom were willingly intoxicated, raised against former U.S. Rep. Eric Swalwell. Others call upon a newly released CNN investigation, which revealed an online “rape academy” where users drugged and sexually assaulted their partners.

Coalition co-chair Chris Lake explained something like the “rape academy” could fall under the bill too. He said networks of predators, across states and countries, are conversing on drugging victims with substances that are not only easily accessible, but metabolize in the body quickly.

“This forces the victim into a very terrible gray zone,” Lake explained. “If [an assaulter] used a drug that’s not detectable, [the victim] now falls into the very same voluntary intoxication exclusion gap.”

Dinowitz, who is also a lawyer, said a case where the victim is heavily intoxicated — such as in several of the Swalwell cases — would be “extraordinarily difficult to prosecute.” Though the Manhattan District Attorney’s office launched an investigation into Swalwell, Dinowitz is “not confident anything is going to happen.”

But local activists believe such patterns need to change. Sue Dodell, a lawyer, longtime Riverdale resident and member of the local women’s activist group called the Ruth Mullen Riverdale Huddle, said predators need consequences.

“They know they’re working within gaps in the law, and if they knew they would be investigated and prosecuted for rape, they won’t do it,” Dodell said. “Word really does get out among predators.”

Throughout the country, legislation has been attempting to close such gaps. Twenty-seven other states and Washington, D.C. have adopted versions of the A101 bill, Lake pointed out.

However, for the past several years, the New York State Legislature has stalled on budget negotiations, and A101 has been one of many bills crammed into the last weeks of session that ultimately dies, Lake said.

Aside from time, Dinowitz and coalition members said primary opposition to the bill comes from those who fear the way the bill is written could lead to wrongful convictions that disproportionately impact Black and Latino men. Specifically, Lake said, in cases of consensual, intoxicated sex, where one party is regretful.

Lake said the bill is meant to apply to defendants who had knowledge the victim was incapacitated beyond the point of being able to consent.

Lawyer Lizzie Asher, also co-chair of the Justice Without Exclusion Coalition, said the bill aims to hold rape investigations to the same standard of other violent crimes, regardless of how a victim came to be intoxicated.

“The fact remains that if they were unable to stand, they were unable to be coherent, falling asleep, slurring their words, then a reasonable person should have known that that person could not consent,” Asher said.

For A101 to become law, it has to make it past the Codes Committee, which Dinowitz chairs. The bill has failed to pass committee three times in the past. Another three times, it was referred to the Rules Committee — which decides the bills that are scheduled for floor votes, chaired by Assembly Speaker Carl Heastie — and also failed to pass.

This year, Lake and Asher had the same question for Dinowitz they’ve raised before: How fast can he get A101 on the Codes Committee agenda?

Dinowitz told The Press it’s not that simple. Building the agenda is a collaborative process, he said, and he does not have ultimate control over it. He added at this time, he does not have an idea of when the bill may make it to the agenda.

Whether the bill makes it on the agenda is not the only concern of its proponents. Former sex crimes prosecutor Jane Manning, who extends legal expertise to the coalition, said the recently amended language of the bill does not protect victims.

Under the current language, the victim has to be “incapable of clearly expressing lack of consent” to be protected. Manning believes the way this has been interpreted previously in court is narrow, and typically refers to the victim being asleep or unconscious.

In one of Manning’s cases, a woman’s drink was spiked, she was taken to a hotel room and raped, and then abandoned in the lobby, she shared. Hotel staff found her “incoherent, screaming, yelling, climbing on furniture, agitated, clearly out of her mind,” Manning said. She was taken to the hospital, where staff said they believed she had been drugged. By the time her blood was tested, whatever drug may have been used was no longer traceable.

“That woman is not protected,” Manning said. “She doesn’t know where she is, she doesn’t know who she is, she doesn’t know what she’s doing, she doesn’t know where she’s being taken, she doesn’t know why the people around her are strapping her down. She doesn’t know any of this — but she can say words, so this statute would not protect her.”

Manning said the coalition supports the original version of the bill, which included specific language protecting victims who are incapacitated by alcohol or another drug to the extent that they are visibly incapable of consent.

Dinowitz and coalition members said they are willing to adjust language of the bill to get it passed by the Assembly session’s end in June — so long as it holds predators accountable, and protects the survivors of sexual assault who may be denied justice without it.

Dinowitz shared that on May 5,  he filed the original version of the bill after consulting with advocates and district attorneys.