New York Civil Rights And Criminal Defense Lawyers

Intoxication loophole in rape cases may close soon

On Behalf of | Wednesday Sep 2, 2020 | Criminal Defense

Women are often extremely cautious with their drinks at bars and parties. One primary concern is that someone might spike the drink with drugs. Women in New York also have to keep the intoxication loophole in mind. This states that if a woman becomes intoxicated of her own free will, prosecutors may have no obligation to pursue rape charges.

In late 2019, U.S. News reported that the New York governor had proposed changes to close this loophole. The governor believes that rapists might abuse this loophole to take advantage of intoxicated women on purpose.

Expanding state definitions

One way the governor intends to make changes is to redefine what it means to become “mentally incapacitated.” People who meet this criterion technically cannot consent to physical intimacy. So, including intoxicated persons in this category could have a major impact on how prosecutors proceed with rape charges.

Including changes on the 2020 to-do list

According to the New York governor website, Cuomo has included his efforts to close the loophole in the 2020 State of the State proposals. To add to this, the governor also intends to increase the penalty for making someone intoxicated against the person’s will, such as by spiking the drink. This may lead to a first-degree felony if the person who commits this act then engages in sexual activity with the person he or she caused to become involuntarily intoxicated.

In the past, many accused parties claimed mutual intoxication, which further muddied the waters of consent and its surrounding laws. It is not clear how the governor intends to treat situations where both parties or either party was voluntarily or involuntarily intoxicated.