The rape loophole still intact

Good news for sexual predators.

Using the alleged victim’s voluntary intoxication as a defense against a rape charge is still a viable option, as a bill to close a loophole in state law did not make it to the assembly floor before the legislative session ended last week.

Under current state law, a person can be charged with rape if the alleged victim is put under the influence without their agreement, creating a state of mental incapacity. But, by specifying the involuntary nature of the intoxication in its language, the law opens a loophole by which an accused attacker can use the alleged victim’s voluntary intoxication to avoid a rape charge.

The bill to close the loophole, A.1065 in the assembly, passed in the state senate unanimously.

Lizzie Asher, co-chair of the Justice Without Exclusion Coalition, which represents 23 likeminded organizations throughout the state, told The Press the bill dying in the assembly, just short of the legislative finish line, is a brutal blow.

“The coalition is simply devastated, furious and in disbelief at the lack of concern for New Yorkers’ safety by leadership.” Asher said.

The bill did clear the Assembly’s codes committee with a unanimous vote. Jeffrey Dinowitz, the codes chair, is a primary sponsor of the bill.

“I’ve been fighting like crazy to get this bill done,” Dinowitz told The Press.

“I believe we had a good shot.”

When a bill is voted out of committee late in the legislative session — codes approved the rape-loophole bill with less than a week to go — it must also pass through the rules committee to make it to a vote on the Assembly floor.

Assembly speaker Carl Heastie is the rules committee chair. He did not put the bill on the committee’s calendar in its last meetings before the session ended, which kept the bill from a full-assembly vote.

Justice Without Exclusion’s other co-chair, Chris Lake, told The Press the bill should have had more than enough support to earn a vote in the rules committee.

“It had over half the entire Assembly, including the majority of the rules committee, signed-on as co-sponsors,” Lake said. “Year after year, legislators demonstrate an inability to prioritize survivors. It’s disappointing, to say the least.”

Before dying in the rules committee, the bill to close the voluntary-intoxication loophole had more than 80 co-sponsors in the Assembly. Manhattan district attorney Alvin Bragg stated his support for the bill in an op-ed cowritten with National Organization for Women-New York City president Sonia Ossorio published June 5 by City & State.

“It is not morally OK, and should not be legally permissible, to have sex with someone who is so intoxicated that they cannot reasonably consent,” Bragg and Ossorio wrote. “There should be consequences for that behavior.”

State attorney general Letitia James also supported the bill.

“There is no defense for rape and sexual assault,” James said via the social media platform X, “and the victims of these terrible crimes deserve to see justice. Period.”

Dinowitz, who had two other bills pass this session, said, though it’s not likely the rape-loophole bill would be revived in a special legislative session, he has no intention of letting the law remain as is.

“I never give up, it’s that simple,” he said. “We had such good support; I think the speaker recognizes that.”

Asher told The Press the bill would address a critical public safety failing.

“This is not an issue that simply affects survivors,” she said. “The idea that somehow there is a concern with over-prosecution of rape cases … is laughable.”

Rapes are consistently labeled “underreported” in New York Police Department crime statistics.

This is not the first time an attempt to close the voluntary-intoxication loophole has failed.

In 2019, former state Sen. Alessandra Biaggi proposed legislation that would have closed the voluntary-intoxication loophole but, by 2022, the bill stalled in the assembly when the language, which must match the senate version, was changed.

Biaggi blamed the incongruity on Dinowitz, whose changes, she said, blunted the potential effectiveness of the bill. Dinowitz told The Press at the time his office tried to reconcile the language with the senate version and Biaggi late in the legislative session to no avail.

New York is not the only state with this loophole in its rape statute, but the number of others is dwindling. Minnesota was the last to close the loophole, enacting legislation in 2021. In the years since, Lake said, Minnesota has seen a decrease in rape.

Dinowitz said he is ready to start again on getting the bill passed next session. Until then, Asher said, the solution to the issue remains as obvious as ever.

“Simply because you were mugged after leaving a bar drunk does not mean that crime didn’t happen,” she said. “Why is rape any different?”

Attempts to reach Heastie for comment were unsuccessful at press time.