Gov. Andrew Cuomo (D-NY) proposed legislation on Tuesday that would close what he called a “loophole” in rape law.
Cuomo claimed that prosecutors cannot bring rape charges against an accused person if an accuser voluntarily consumes alcohol. Cuomo’s proposal would change the state’s definition of those who cannot legally consent to sexual activity to include someone who is conscious but allegedly too drunk to consent. Keen observers will notice how vague the idea of being “too drunk to consent” may be.
“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 told The Associated Press in a statement. “Our laws must protect the people of this state — not condone rape as a punishment for consuming alcohol.”
This new law does what college campuses around the country already do – treat alcohol consumption as a negating effect on consent. It essentially turns all drunk sex into rape, and allows anyone who consumed any amount of alcohol to claim they couldn’t consent.
It also only punishes one side of the equation – whoever the accusation is made again. Often, both parties are drunk, making a law like this pretty meaningless if properly followed, because if both parties are drunk, both parties are both victims and rapists.
Of course, that is never how such a policy is upheld. Never forget Duke University dean Sue Wasiolek, who years ago infamously testified that when both parties are drunk, “assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”
Given the #MeToo movement and “believe all women” supporters, it is clear this law from Cuomo will be used against any man for any reason a woman chooses. It will not be used only by true victims, it will be used for vindictive purposes and by women who have been led to believe that making bad choices after consuming alcohol is akin to rape.
This law only applies to sex. Women who consume alcohol and make the bad choice of getting behind the wheel of a car can’t claim they shouldn’t be punished because they can’t be held accountable for their actions while drinking alcohol.
Criminal defense attorney Scott Greenfield reacted to Cuomo’s proposed law in a blog post, saying: “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.”
Greenfield went on to explain that the new law indicating that merely being “drunk” gets someone out of responsibility for their actions doesn’t end at sex or drunk driving:
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.