By Dr. Sarah Bahrenburg, PhD, MSc, MBA, JD Candidate ‘25
Every 68 seconds, someone in the United States is sexually assaulted.[i] Eighty percent of rapes are committed by someone known to the victim, with thirty-nine percent perpetrated by an acquaintance.[ii] Seventy-five to ninety percent of acquaintance rapes involve the use of alcohol or drugs.[iii] In only eleven percent of rapes and sexual assaults does the perpetrator use a weapon.[iv] Perpetrators target vulnerable individuals, so the use of a weapon is rarely necessary. Intoxication leaves an individual mentally incapacitated, as defined by the law.[v] However, in New York State, if a victim becomes intoxicated voluntarily, the perpetrator will not be held responsible.
Rape involves engaging in “sexual intercourse with another person who is incapable of consent by reason of being . . . mentally incapacitated.[vi]” “Mentally incapacitated” means that a person is “rendered temporarily incapable of . . . controlling [her] conduct owing to the influence of a[n] . . . intoxicating substance administered to [her] without [her] consent . . .[vii]” The law mandates that the intoxicating substance must be provided to the victim without her consent; however, if she voluntarily partakes in substance use, becomes intoxicated, and is raped, it is viewed as a consequence of her actions.
Victim-blaming is prominently featured in this law, known as the “Voluntary Intoxication Loophole,” because it provides the perpetrator an escape.[viii] Victims deserve to be treated with dignity and humanity when they report a rape. Numerous bills have been proposed to close this loophole, aiming to eliminate the stigma associated with drinking and enjoying a night out without the fear of assault. The latest of these bills is S4555B/A1065.[ix] The purpose of the bill is “to allow sex crime charges to be filed in cases where the victim became voluntarily intoxicated if a reasonable person in the defendant’s position should have understood that the victim was incapable of giving consent due to intoxication.[x]” These changes are crucial for holding perpetrators accountable, eradicating stigma, and enabling victims to come forward without shame.
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[i] Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey, 2019 (2020).
[ii] Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey, 2010-2016 (2017).
[iii] West Virginia Foundation for Rape Information & Services, Drug Facilitated Sexual Assault, https://www.fris.org/SexualViolence/DrugFacilitated.html (last visited Dec. 9, 2024); Robin Hattersley, The Sexual Assault Statistics Everyone Should Know, Campus Safety, https://www.campussafetymagazine.com/news/sexual-assault-statistics-and-myths/15919/ (Mar. 5, 2018) citing National Collegiate Date and Acquaintance Rape Statistics.
[iv] Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Female Victims of Sexual Violence, 1994-2010 (2013). Weapon such as a gun or knife.
[v][v] NY CLS Penal Law § 130.00 (6)
[vi] NY CLS Penal Law § 130.30 (2)
[vii] NY CLS Penal Law § 130.00 (6), emphasis added.
[viii] Alvin Bragg and Sonia Ossorio, Close the Voluntary Intoxication Loophole, City & State New York, https://www.cityandstateny.com/opinion/2024/06/bragg-close-voluntary-intoxication-loophole/397130/ (Jun. 5, 2024).
[ix] N.Y. Legis. Assemb. Reg. Sess. 2023-2024, https://www.nysenate.gov/legislation/bills/2023/A1065/amendment/A; Prohibits the use of intoxication of the victim as a defense in sex crimes.
[x] Id.