Legislators discuss voluntary intoxication loophole

New York legislators and advocates gathered at Manhattan College April 11 to urge an end to a loophole that can allow someone accused of rape to face no charges.

Under current New York law, someone accused of rape or sexual assault can use the victim’s voluntary intoxication as a defense.

Assemblyman Jeffrey Dinowitz and state Sen. Nathalia Fernandez, prime sponsors of legislation to eliminate the loophole, were two of several panelists at the Kelly Commons room discussing the issue.

“Whether you’re voluntarily intoxicated or involuntarily intoxicated, to me I don’t see the difference,” Dinowitz said. “Being drunk, being wasted and being high is not an invitation to be sexually assaulted, period. You don’t give somebody the right to rape you or do something else horrible simply because you’ve taken bad chemicals in your body.”

Lizzie Asher, president of Macchu Pisco, a woman owned and operated wine company, moderated the panel, which included Chris Lake, executive director of Community for a Cause, and Angelina Perez, a Manhattan College student and president of the college’s chapter Its On Us, an organization that informs and educates students about domestic and sexual assault on campuses.

Perez, a survivor of sexual assault, shared an experience from her freshmen year in which a male friend trying to lose his virginity fed her drinks and tried to have sex with her despite her rejecting his advances. The male friend took her into his bedroom, but a female friend luckily saved her, Perez said.

My friend “proceeded to confront him and ask ‘What exactly were you planning on doing that night while Angelina was not able to give consent or even talk to you,’” Perez said. “And he says ‘Honestly, I don’t know. I was just kind of looking forward to see what happened.’”

Lake, whose non-profit is dedicated to collaborating with communities and agencies to provide for those in need, said no one is trying to criminalize drunk sex. Rather they are focused on someone who is preying on someone else who will not remember drinking.

The law already has a precedent for what is considered “too intoxicated.”

“Bartenders are required to identify when someone is in need of being cut off,” Lake told The Press. “There are telltale signs: blurry eyes, glazed eyes, slurred speech, stumbling, incoherent speech, erratic behavior. There’s a certain point, if a bartender keeps serving them, they are liable for what that person does next.”

The loophole dates back to the 1990s, when there was an increase in date rape drugs being used at bars and college campuses.

“What may have made sense 30 years ago doesn’t really make sense now,” Dinowitz said. “We have to address a larger problem than that. And that problem is the people who aren’t necessarily being drugged.”

Legislation sponsored by Dinowitz and Hernandez is not new. Former state Sen. Alessandra Biaggi drafted the law in 2019 and put it to the floor in 2020. Dinowitz, who was a co-sponsor of the Rape is Rape Act, said he knew immediately he wanted to deal with the loophole in the law.

But, the Biaggi bill hit several bumps, preventing it from passing. The Press reported in 2021 that codes committee chair Dinowitz declined to bring the Biaggi bill up for a vote because of concerns from colleagues it wouldn’t protect those falsely accused of sexual misconduct.

Last year, Dinowitz told The Press he didn’t want to see the new bill stymied due to a small percentage of fake accusations.

In 2022, the Biaggi bill failed to pass at the end of the legislative session as a result of the language in the Assembly version of the bill and Senate version not mirroring each other. Biaggi claimed Dinowitz amended the bill without consulting her, the community, advocates or district attorneys. Dinowitz told The Press last year he believed both houses changed the languages somewhat. The tweak in the Assembly was in hopes of getting it passed more easily, he said.

When asked what lessons Dinowitz took in moving forward with the bill, he referenced some of the 200 laws he’s passed, some of which passed quickly and some which took some time.

“Some things just take a ridiculously long time, for whatever reason,” Dinowitz told The Press. “I’m not making any excuses, I’m just saying that’s a reality. And some things happen more quickly but my way of doing things is that I keep going and going until we get the job done. It’s really that simple … I never give it up.”

Dinowitz said he’s committed to trying to get the new bill onto the agenda before the end of the session. The current Assembly version of the bill matches the Senate’s version.

It has more than 30 sponsors, as well as support from district attorneys, and community and advocacy organizations.

The voluntary intoxication loophole has already been eliminated in several states, including Minnesota in 2021, which saw the rate of rape decrease by about six percent the following year, Lake said.

“It needs to be passed,” Perez told The Press. “It’s something that will affect future generations. Whether or not people believe that it affects them, it definitely does. Whether it’s by somebody you know, or it happening to you personally or even you just hearing stories and being impacted.”