In a peculiar effort to explain why some of the conduct brought to his door hasn’t resulted in SWAT teams breaking down doors, New York County District Attorney Cy Vance asserted something that every heartbroken neo-feminist twitter lawyer knows is an absolute lie.

“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.”

It’s not that Vance doesn’t want to prosecute. He does. Or at least he claims he does. It’s that it’s a “loophole.”

“I think people actually would be totally surprised if they learned that this was the law,” Vance said. “The law has a loophole and it’s a loophole that can be fixed.”

Vance sent a letter to Gov. Andy Cuomo (although Cuomo’s spokesman claims he’s not received it) asking that the loophole be closed.

Amend the sex crimes law to remove the requirement that a victim’s intoxication was
caused involuntarily.

Under current law, a voluntarily intoxicated individual is not considered “mentally  incapacitated,” even if he or she were unable to control his or her conduct due to that intoxication. 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 the victim was incapacitated. But there is no difference between an intoxicated individual’s ability to consent to sexual acts when he or she was drugged, and an intoxicated individual’s ability to consent when he or she voluntarily drank alcohol or took narcotics. Victims of sexual assault should not be barred from obtaining justice because he or he voluntarily consumed drugs or alcohol. And perpetrators of sexual assault should not be  shielded from prosecution just because the victim voluntarily consumed drugs or alcohol. The law should be amended to remove the requirement that the victim’s intoxication was caused  against his or her own will, in cases where a reasonable person in the defendant’s position should have known that the victim was incapacitated.

While Vance doesn’t make mention of the source of the dilemma, Penal Law § 130(6) appears to be what he’s talking about.

“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.

Then again, this definition appears to confuse the relative relationship of the victim of a crime and its perpetrator, although the final phrase, “committed upon him without his consent” seems to lend some support to Cy’s contention, but taken in context, makes little sense. Still, PL § 130.05 specifically expresses that “lack of consent” is an element of every sex crime, and can be proved by “incapacity to consent.”

While Vance was calling for the closing of the “voluntary intoxication” loophole, New York State Assemblyman Dan Quart was calling bullshit on Vance.

To be clear, drunk women are protected in current law. Of the three rape charges available to @ManhattanDA, two of them apply to voluntary intoxication.

Once again, Vance is shifting the blame for his failure to prosecute sexual assault in Manhattan.

Being unfamiliar with New York law is not unusual for a state lawmaker, and may well be a requirement for the job. There is nothing about Quart’s twit that’s remotely accurate, as the three degrees of rape bear no connection whatsoever to intoxication, but only to incapacity to consent.

So while a woke state lawmaker proclaims on the twitters that drunk sex is rape, a proposition that is so astoundingly false and baseless that Quart could hold no job other than legislator, he does so only to criticize Vance calling for the state to close a “loophole” that arises from, at worst, a poorly worded definition rather than law that clearly precludes the prosecution of a woman who is incapacitated as a result of her voluntary intoxication.

This raises a problem, not just for legal theorists like Quart for whom no text stands in the way of prosecuting rapists because he says so, but for Vance, who no doubt realizes that this “loophole” that excuses his failure to prosecute cases where a fully incapacitated person is raped also presents a huge problem for his ability to prosecute a great many other crimes.

If voluntary intoxication, per se, preludes the capacity to consent, it simultaneously negates the capacity to formulate the intent to commit the full panoply of offenses. Drunk driving? How can one be guilty if one is drunk and thus incapable of formulating the mens rea necessary to commit the crime. Can one formulate the intent to commit murder if one is so blotto that they can’t stand up?

The response is that the legislature can statutorily include or preclude voluntary intoxication as an element or defense to a crime, but then, it creates a theoretical conflict of what constitutes the mental state necessary to be a victim or a perpetrator. If voluntary intoxication makes a “victim” incapable of consenting, how can it not make a “perpetrator” similarly incapable of the intent to commit the crime?

On the other hand, if the element of rape bears no connection to drunkenness, whether voluntary or otherwise, and is limited to incapacity, without regard to the cause of the incapacity, perhaps the issue can be avoided entirely? Except that would mean that women who are drunk, but not incapacitated, and have sex can’t accuse anyone of rape the next day (or year) when they wake up and regret their choice. As everyone on twitter knows, that’s “morally” rape and so there’s no way the law can allow that to stand.