Voluntary intoxication should not bar rape prosecutions

To the editor,

A recent letter to The Riverdale Press questions the wisdom of a sex crimes bill being weighed by the legislature in Albany. As the writer points out, the thrust of the legislation is to correct a long-standing prohibition which prevents the victim of a rape from pursuing prosecution if she was peacefully intoxicated at the time of the attack. In such condition, a woman is now prohibited from pursuing charges if her inebriation was “voluntary.” Yes, you read that correctly, a woman in New York who is raped may not pursue criminal charges against her assailant if she had too much to drink at the time of this brutal violation. The criticism set forth in the letter dwells on the hypothetical scenario that the assailant is similarly intoxicated and therefore he lacked the capacity to know that his companion also lacked the necessary capacity to consent. There are several problems with this denial of rights to a rape victim.

First, why isn’t the assailant’s defense of joint inebriation simply a defense for the court to consider? Let the trier of facts, be it judge or jury, weigh the evidence in reaching a verdict which depends on proof by the victim beyond a reasonable doubt. But to prohibit any prosecution at all is simply not just.

Secondly, I am not aware of any crime committed against a man or a woman, set forth in the New York Penal Code, including robbery, assault and burglary in a home, in which a victim is barred from pursuing prosecution because she or he had had too much to drink. The current prohibition regarding volitional inebriation is, unfortunately, a vestige of a historic bias against women in sex crimes cases. Many, many years ago, when I was a young prosecutor, women were barred from having the men who raped them from being prosecuted at all, unless there was an independent witness to the rape, or a confession by the assailant, to this most vile of assaults. The veracity of a female victim was simply an impermissible basis, as a matter of law. The debate was intense, and lasted for years before that prohibition was finally removed by the legislature.

The legislation proposed by Assemblyman Dinowitz is long overdue and deserves prompt enactment.

ERIC A. SEIFF
Seiff is of counsel to the law of firm of Amini LLC and was chairman of the New York State Commission of Investigation