There’s A Major Loophole In Rape Cases Involving Alcohol & New York Is Taking A Stand

Taking a major step towards reprieving a colossally-damaging law, New York governor Andrew Cuomo wants to clarify the state's rape laws. In an announcement on Tuesday, Cuomo seeks to redefine conditions under which a person is capable of giving consent, specifically in incidences involving intoxication. According to Cuomo, the laws as they are now allow "rapists to walk free and vacate their heinous crimes based on a legal technicality." The technicality, in question, is alcohol consumption during a sexual assault.

New York's current law stipulates that a person is unable to give consent if they are “mentally incapacitated,” which is defined by involuntary intoxication; however, it does not apply if the person chose to consume drugs or alcohol.

This means that currently, a person who consumes alcohol or drugs "involuntarily" is more protected legally if they are attacked that someone who is intentionally drinking or consuming drugs. Although the laws of consent aren't so black and white, this definition has made it, in the past, very difficult for many survivors of rape to establish their cases as far as consent. Cuomo now wants to change that legislation under the definition of "mentally incapacitated."

Through this legislative amendment, “mentally incapacitated” will include both voluntary and involuntary consumption of drugs or alcohol, supporting the idea that a perpetrator is no less guilty of sexual assault because someone drank willingly.

"Our laws must protect the people of this state — not condone rape as a punishment for consuming alcohol", said Cuomo in a statement to the Associated Press. "With this proposal, we are saying enough is enough and taking action to close this nonsensical loophole and help end the culture of abuse once and for all."

Broadening the definitions of when someone is and isn’t able to give consent enables more victims to seek comprehensive justice with less fear of their attacker walking free on no more than a technicality. According to Manhattan District Attorney Cyrus Vance Jr., who proposed the amendment in a letter to Cuomo in April 2018, this proposal empowers prosecutors “to bring more cases and secure justice for more survivors.”

This is also the first time legal definitions and conditions of sexual assault in New York are being updated since 1995 when the Sex Offender Registration Act passed. According to Vance, this redefining of terms “aligns New York’s definition of consent with more than half the nation.” 

Currently, most states hinge the definition of consent on whether intoxication was voluntary or involuntary. New York and California are the only two states to enact a policy of affirmative consent on university campuses. Many states still maintain outdated notions of consent, what it is, whether it can be revoked, and under what conditions it can be given.

The new definitions are included in a bill that is currently in committee at the New York Senate. Cuomo reportedly plans to introduce it as part of his 2020 legislative package.