Cuomo: Drunk Is A Rape “Loophole”

It started with New York County District Attorney sending Governor Andy Cuomo a letter in order to cover his butt. That’s where it was first called a “loophole.”

“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.”

This is kind of tricky to follow, as it conflates two separate things: first, if it’s involuntary, such as a person forcing another person to become drugged or intoxicated, then the intoxicated person is not responsible for her condition. The second is that being drunk is not the same as being incapacitated. One can be incapacitated by being drunk, or being drugged, but the key to the law is being incapacitated. Drunk, alone, doesn’t do it.

But Cy called it a “loophole,” which by definition means it’s a law working the way it was intended and someone doesn’t like the outcome. So Andy is going to fix it.

Gov. Andrew Cuomo proposed new legislation Tuesday that would close a loophole in New York law that often prevents prosecutors from bringing rape charges when victims become drunk of their own volition.

This might be a good place for the AP to have included some details, maybe even a link to the legislation being proposed, but who needs all that work? And besides, it’s not like it won’t be tweaked to overcome its excess leniency that might let an accused guy walk by the Dem majority in New York’s Assembly and Senate anyway.

The governor wants to amend the state’s definition of who cannot legally consent to sexual activity. That currently does not include someone who remains conscious — but is too drunk to consent — after becoming voluntarily intoxicated.

“While New York has some of the most aggressive laws in the nation when it comes to combating this insidious disease, a loophole in current law allows rapists to walk free and vacate their heinous crimes based on a legal technicality,” Cuomo said in a statement to The Associated Press. “Our laws must protect the people of this state — not condone rape as a punishment for consuming alcohol.”

Like “loophole,” a “legal technicality” shows up whenever one wants to denigrate a law by requiring cogent elements. The problem, for the hard of thinking, is that incapacity at least offers some basis to challenge a post-hoc claim of lack of consent by evidence that a woman could walk, talk, text on her smartphone and generally function. If she could perform ordinary tasks, then she was not incapacitated and, like any other person, was capable of consenting to sex.

But drunk? Not incapacitated by alcohol, but just plain old Saturday night drunk? It’s an impossible standard to challenge.

I had three beers, and I was drunk. I didn’t know what I was doing.

Disprove this. You can’t. She may have enthusiastically consented. She may have initiated sex. Tough nuggies, she had a few drinks so now you’re a rapist. After all, she says so, and it’s a loophole, as it prevents us from “believing the woman” and instead relying on facts.

A bill introduced this year in the New York State Senate would expand the state’s definition of “mentally incapacitated” to allow charges to be brought if a “reasonable person” should have known a victim was too impaired to consent due to voluntary intoxication.

The governor intends to introduce a separate but similar piece of legislation next year.

“The pervasive culture of sexual assault and abuse has gone on for too long in this country,” Cuomo said.

But if a person is too impaired to consent due to voluntary intoxication, and thereby relieved of any responsibility for their actions, their choices, and their consequences, the same lack of capacity applies to other conduct. Drunk driving will be an oxymoron, since anyone who is drunk cannot, by definition, be responsible for getting into their car and, well, doing bad things.

But it doesn’t stop there. Rob a store? Get drunk first, and it’s not your fault. Before, it you were capable of performing the criminal act, then you weren’t too incapacitated to do so, as proven by the fact that you did so. But now, if ordinary drunkenness vitiates the capacity to consent, precludes a woman from having the adult agency to make a decision to engage in sex, then it similarly precludes the formulation of intent to do anything. Either drunk matters or it doesn’t.

In the context of drunk driving, courts have dealt with the problem of people being so severely intoxicated as to be incapable of formulating the requisite mens rea by holding that they made their choice when the drank alcohol to excess. They started out sober and chose to become less so, and less so, until they were intoxicated.

They had a volitional decision to make, to drink alcohol to a state of drunkenness where they compromised their judgment. There is no rational way to distinguish culpability for criminal conduct while drunk from the capacity to consent while drunk. This was done “for the children,” using the same rhetoric about letting drunken criminals walk free and do harm that’s now turned around to abrogate consent to sex after the fact.

Are Cuomo and the legislature prepared to face the consequences when even the volitional act of drinking alcohol, and presumably taking drugs as well, vitiates the capacity to be responsible for choices, like getting shit-faced and then having sex?

More to the real point, women are fully capable of being responsible for their decisions, including the choice to have sex, even when they get drunk. Infantalizing women isn’t the answer, but opens a Pandora’s Box of problems, not the least of which is the government treating women like fragile, helpless creatures who can’t make the decision to get drunk and have enthusiastically consensual sex.

20 thoughts on “Cuomo: Drunk Is A Rape “Loophole”

  1. Skink

    You aren’t thinking this through. I have the benefit of currently considering my firm budget for next year, so I thought it through. If I only practice law drunk, I can cancel my malpractice insurance. And don’t give me that negligence v. intent stuff–I’m saving money.

  2. Kathryn Kase

    You ask: “Are Cuomo and the legislature prepared to face the consequences when even the volitional act of drinking alcohol, and presumably taking drugs as well, vitiates the capacity to be responsible for choices, like getting shit-faced and then having sex?”

    I dunno, but I love the smell of doctrinal chaos in the morning!

          1. LocoYokel

            So what happens under the circumstance that, for whatever reason (maybe she was the designated driver), the woman is sober and the man drunk? Can he press charges under this law/doctrine?

      1. LocoYokel

        I want to be in the gallery the first time a defense lawyer uses this to try to get his client acquitted.

        1. delurking

          I am intrigued by this notion that legislatures or governors face consequences when they pass laws that are not logically consistent with one another. They declare that if you are voluntarily incapacitated by alcohol and you drive (or rob a store), you commit a crime, and that if you are voluntarily incapacitated by alcohol and you have sex, you are the victim of a crime. Done, right?

          1. LocoYokel

            I’m not talking about the legislature, I want to see the prosecutors and judges faces and reactions.


        And here I always thought that getting to the worm was the whole purpose of drinking Tequila. It’s supposed to have mystical powers, IYKWIM.

  3. Pingback: New York proposes making drunk sex a crime, not just a campus violation | The College Fix

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