Survivors and advocates say closing the loophole is a crucial step toward shifting blame from victims to perpetrators.
Under current New York law, if someone was drinking by choice when they were assaulted, prosecutors can decide not to pursue the case. This law provides prosecutors with an out when it comes to sexual assault—and statistics show they take it: In 2019, prosecutors dropped nearly half of all sexual assault cases in the Manhattan district attorney’s office. A bill proposed in the state legislature is looking to make it harder for prosecutors to throw out sexual assault and rape cases by prohibiting the use of intoxication of the victim as a defense.
“It’s a staggering injustice. Being unable to say no doesn’t mean you have no right to say no,” says Ann Olivarius, a leading women’s rights attorney and longtime advocate for survivors of sexual assault and gender-based violence.
The bill would guarantee that if a victim is voluntarily intoxicated at the time of their assault, they cannot be denied protection under the law. Some form of an intoxication loophole exists in more than 20 states. However, whether or not a state has eliminated the loophole doesn’t necessarily fall along party lines. While New York is still working to close its loophole, Texas eliminated its voluntary intoxication loophole this summer.
“If this bill passes, survivors in New York won’t have to ask themselves, ‘Well, maybe I was asking for it by having that beer,” says Olivarius.
The process of amending New York’s law to support survivors and provide them with legal recourse began at the turn of the decade. Former Gov. Andrew Cuomo failed to advance the bill which was in his 2020 budget. He later resigned in 2021 a week after the New York attorney general released an investigation that found Cuomo had sexually harassed at least 11 women.
Having a drink doesn’t mean you surrender your bodily autonomy. The onus on not to rape and the punishment for it must be on the perpetrator.
Ann Olivarius
The bill needs to be passed through the state’s Senate and Assembly, then be signed by Gov. Kathy Hochul. It’s not yet clear when the bill will be scheduled for a vote. Olivarius says that the bill is likely falling victim to New York’s “famous dysfunctional state government”—that is, Republicans are unlikely to support the bill if state Democrats do, and vice versa.
If passed, the bill would reshape the legal landscape, representing a crucial step for survivors. At least half of all sexual assault cases are associated with the victim or the perpetrator’s alcohol consumption.
“Having a drink doesn’t mean you surrender your bodily autonomy. The onus on not to rape and the punishment for it must be on the perpetrator. We can’t keep treating sexual violence as a crime of opportunity, which it is now,” says Olivarius.
Sexual Assault and Rape as an Epidemic
Olivarius noted that the bill is a small step, but essential nonetheless as it chips away at a criminal justice system with deeply systemic issues of racism and sexism.
“Rape is such a structural problem. It’s so deep in this society, and nobody really seems to give a damn.”
On top of the current laws, rape is the most underreported crime, and cases that are reported are notoriously hard to win. Few reports lead to arrests and an even lesser percentage leads to felony convictions. Nearly 98 percent of perpetrators of sexual assault will not go to jail or prison. College-age women are the most vulnerable with just over 26 percent of undergraduate women experiencing rape or sexual assault.
“It’s so hard to get a conviction, it’s really tough. And so, you’re up against the odds, but at least [voluntary intoxication is] one thing that at least they can’t hang their hat on.”
“Survivors really want this,” Olivarius continued. “And so there’s people from years ago who are pushing it still. And of course, Cuomo turned it down, but now I think there’s a shot that it might just pass.”
In October 2024, the U.K. passed the Online Safety Act, protecting children and adults online. When Olivarius was drafting the bill, there was a room consisting of 14 members of Parliament, three of them women. “And one of the men said, ‘well you haven’t been raped of course. What are you concerned about?’ The three women were from aristocratic families, very very wealthy, really well educated. And one woman looked at him and said, ‘I’ve been raped four times, the first time gang raped.’ The other two women hesitated and said they’ve both been raped also.”
“And the men said, ‘What? Well, we don’t know anybody who’s been raped.’ And of course, they all said, ‘Sure, you know, the three of us and most of the women in Parliament have been raped for sure.’”
Setting Trends Across the U.S.
States, red and blue, have done away with the loophole, leaving New York to play catch up. Olivarius is hopeful that New York will pass the law and become “part of the ripple” that pushes the country closer to the halfway mark. If passed, New York would be the 23rd state to close the voluntary intoxication loophole.
“I think most people for this kind of thing will stop and say… I didn’t know that because I was drunk … I lose my justice rights. When they see it that way, you shouldn’t lose your justice rights. You know, you should be allowed to get drunk and not be taken advantage of.
“It’s actually a profound shift from the victims’ complicity in their own crime to focusing on the perpetrators’ responsibility.”
Great Job Livia Follet & the Team @ Ms. Magazine Source link for sharing this story.
