News sources have been falsely reporting that if a victim is voluntarily intoxicated in New York, it is “nearly impossible” to prove rape due to a legal “loophole” in consent laws. This is wildly false information that could cause victims to think that if they got drunk before being raped, their rapists get a free pass. Nothing could be further from the truth.
THE FALSE CLAIM
CNN reported:
Resurfaced allegations of a gang rape at a Cornell University fraternity house have renewed outrage over what experts call a legal “loophole” in New York’s – and other states’ – sexual assault laws that can make it nearly impossible for survivors to seek justice if they voluntarily consumed alcohol or drugs before an assault.1
This and similarly false statements were repeated throughout other news sources including Associated Press and NBC New York.
WHY IT’S FALSE
Under New York law, first degree rape requires proof of nonconsensual vaginal, oral, or anal sex. Lack of consent can be proven in any of the following ways, regardless of whether the victim is voluntarily intoxicated from drugs or alcohol:
Rapist used physical force; or
Rapist made certain express or implied threats that places the victim in fear of immediate death, physical harm, to herself or others, or of being kidnapped; or
Victim was mentally disabled; or
Victim was physically helpless; or
Victim was under age; or
Victim was committed to, under the control, or supervision of the state (e.g. guard has sex with an inmate, police officer has sex with someone in custody, a state psych nurse has sex with committed patient, and etc.)
The so-called legal “loophole” has to do with a different method called “mental incapacity” that allows prosecutors to prove lack of consent in situations where the victim was essentially poisoned by narcotics or intoxicating substances. The statute defines this term as follows:
"Mentally incapacitated" means that a person is rendered
temporarily incapable of appraising or controlling his conduct owing to
the influence of a narcotic or intoxicating substance administered to
him without his consent, or to any other act committed upon him without
his consent.
Advocates and new sources falsely claim this language creates a legal “loophole” that makes it “nearly impossible” to prove rape when the victim is voluntarily intoxicated. To get there, they ignore all of the other ways (in the bulleted list above) to prove lack of consent whereby voluntary intoxication is irrelevant.
HYPOTHETICAL DRUNKEN 13 YEAR OLD
Image a situation in which a 13 year old child voluntarily gets drunk with her friends only to be molested by an adult.
Because she had been drinking, the child is afraid to tell her parents or report it to the police. She looks up the subject online only to come across a report from CNN that says rape will be “nearly impossible” to prove because she was voluntarily intoxicated.
So, the child decides not to tell her parents—let alone report it to the police. In this scenario, the “loophole” misinformation would have caused a serious injustice.
A prosecutor could prove lack of consent simply by showing the jury that the child was underage. And there are many other ways to prove lack of consent for which voluntary intoxication is irrelevant.
HYPOTHETICAL JANE DOE 20 YEAR OLD
For example, assume the victim is not a child but a 20-year-old college student. Jane Doe voluntarily consumes ten drinks over the course of three hours. Then she goes to a fraternity house where she continues drinking, smokes pot, and is given multiple rounds of ketamine over a six-hour period until she becomes unconscious.
Lack of consent can still be shown in a first degree rape case by proving that the rapists used physical force, threats, or that she became physically helpless as a result of the drugs and alcohol she consumed.
"Physically helpless" means that a person is unconscious or for any
other reason is physically unable to communicate unwillingness to an
act. [ NY Pen. Law, § 130.00(1) ]
This provision does not ask why she became unconscious or unable to communicate. Voluntary intoxication is irrelevant. All that matters is that she was either unconscious or physically unable to communicate unwillingness. New York appellate courts have even held that a victim can be “physically helpless” as a result of alcohol she consumed voluntarily.
States such as California have a provision that lack of consent can be specifically proven if the victim was willingly intoxicated. Specifically:
If a person is prevented from resisting by an intoxicating or anesthetic substance or a controlled substance, and this condition was known, or reasonably should have been known by the accused. [ Cal. Penal Code, § 261, subd. (a)(3) ]
The bottom line is that victim groups are pushing to expanding the ways that lack of consent can be proven in New York. They have their hearts in the right place. But they are dangerously misstating the current law by claiming it is nearly impossible to prove rape in New York if the victim was voluntarily intoxicated.
As demonstrated in this article, all but one of the methods of proving lack of consent are available to prove rape—regardless of voluntary intoxication.
Calling the New York provision that enables lack of consent to be proven when the victim is poisoned by narcotics or intoxicants a “loophole” is inept. This misinformation has serious consequences. It can prevent victims, who are have been mislead, from coming forward.
It’s also important to know that in New York, certain sex crimes other than first-degree rape have additional methods to prove lack of consent that are not discussed in this article. And New York has other sex crimes, including sex trafficking, where consent is irrelevant.
I think it’s a good thing if New Yorkers want to create another method of proving lack of consent specific to the situation where a victim is willingly intoxicated. But spreading falsehoods to get there harms victims.
WARNING: I am a licensed attorney in California. I do not practice law in New York. This article is not intended to be legal advice. This is not an advertisement for my legal services. If someone has harmed you, contact your local authorities and find an attorney near you. The purpose of this article is to discuss New York’s laws regarding consent for certain sex offenses and the consequences of when advocacy groups and media sources spread misinformation.
