Bragg: Close the voluntary intoxication loophole

It is not morally okay and it should not be legally permissible to have sex with someone who is so intoxicated that they cannot reasonably consent. There should be consequences for that behavior. But New York state law fails to adequately protect those individuals. That needs to change.

Currently, courts have interpreted our rape laws as only recognizing individuals as “mentally incapacitated” and unable to consent to sex if they were drugged or otherwise under the influence without their consent. Drugging someone to rape them is clearly wrong. So is taking advantage of someone who became intoxicated voluntarily. In either case, the person is incapable of meaningful consent, and our laws should clearly recognize sex under either circumstance as rape.

Sexual assault is shockingly prevalent, and we know that the vast majority of sexual assaults, an estimated 63%, are never reported to the police. Lawmakers should address the voluntary intoxication exclusion in New York state –  a gap in New York’s penal law that creates an unjustly high bar to hold perpetrators of rape and sexual assault accountable.

To be clear, the Manhattan D.A.’s Office does bring charges it can prove beyond a reasonable doubt, even if a case is difficult. If a sexual assault survivor cannot testify that they refused consent because their memory of the event is unclear, prosecutors in some cases can build a strong case using video surveillance, eyewitness accounts and other evidence. Sometimes lesser charges can be brought – but the hurdle is high, and survivors deserve better.

NOW-NYC is fighting to close the legal voluntary intoxication exclusion in New York state because this change in the law will ensure more survivors receive justice. The Senate has passed this legislation this year, but the Assembly has yet to act and pass A1065 with precious few days left this legislative session in Albany.

We firmly believe that safety and fairness must go hand in hand, and that this legislation appropriately protects the rights of the accused. We would not support it if that were not the case.

The bill does not criminalize all alcohol related encounters. Instead, it recognizes and addresses the all-to-common scenario where offenders seek out highly inebriated victims who they know –  or reasonably should have known – were incapable of consent. We’ve seen cases where a person literally can no longer walk on their own, is unable to form complete sentences, or can’t get out of a taxi on their own.

This is about requiring responsible adult behavior and holding people accountable for rape and sexual assault. And this is not a novel approach. It would bring New York’s law into line with 27 other jurisdictions that already criminalize sexual assault of individuals who are incapable of consent by reason of voluntary intoxication.

We cannot set the bar in our criminal laws so low that drinking too much alcohol is a permission slip for rape. Current law ignores the reality of how sexual assault and rapes happen. Most sexual assaults do not involve a stranger jumping out of the bushes with a weapon. In approximately 80% of sexual assault cases, the survivor and the accused are not strangers, and approximately 90% of acquaintance rapes involve alcohol. Perpetrators purposefully target victims who are vulnerable after drinking to excess, or encourage drinking to facilitate an assault.

If we are serious about protecting New Yorkers from sexual assault, we must update our laws to fit the reality of the crimes that are occurring.

We have an obligation to keep our communities safe and ensure fairness in our justice system –  both for victims and the accused. When our laws are inadequate to those ends, as our sex crimes laws currently are, the Legislature has an obligation to act. In the final days of this legislative session, we implore the Assembly to join their Senate colleagues in passing this critical piece of legislation and finally correct this fundamental injustice.