A bill that would make it illegal to have sex with someone who is too intoxicated to consent could be on its way to becoming New York law in a matter of days.
State law currently makes it illegal to have sex with someone who was drugged or had their drink spiked by someone else. But existing law does not deal with situations where somebody voluntarily consumes drugs or alcohol to the point where they cannot clearly express consent.
That’s why Assemblymember Jeff Dinowitz is proposing a bill with state Sen. Nathalia Fernandez that would close what the Bronx Democrats call a loophole in state law.
“We refer to it as the ‘voluntary intoxication exclusion,’” Dinowitz said. “So cases where an individual was voluntarily intoxicated ... weren’t being prosecuted, or certainly weren’t being prosecuted successfully, because the law didn't say it was a crime, essentially.”
The bill originally was introduced more than six years ago in response to a letter from former Manhattan District Attorney Cyrus Vance that called on then-Gov. Andrew Cuomo to strengthen the state’s laws on rape and sexual assault. Research shows that either the victim, the perpetrator, or both parties consumed alcohol in at least half of all sexual assaults.
"Under current law, a voluntarily intoxicated individual is not considered 'mentally incapacitated,'" the letter reads. "Therefore, prosecutors cannot bring sex crime charges in cases where the victim became voluntarily intoxicated and was unable to consent, even if a reasonable person would have understood that victim was incapacitated."
The bill has garnered the support of sitting prosecutors in New York, including Bronx County District Attorney Darcel Clark.
“Nobody should take advantage of somebody that you know is clearly too drunk to say yes,” she said.
The bill passed in the state Senate and is under consideration in the Assembly.
“You can't undo the assault and the trauma that that may have been caused, but at least we should be able to get justice for the survivors of sexual assault,” Dinowitz said.
