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Andrew Cuomo wants to close loophole for rape when victim is drunk

ALBANY – Gov. Andrew M. Cuomo on Tuesday proposed to end a “nonsensical loophole” in law that makes it more difficult for prosecutors to convict suspects when the victim had been drunk.

    Currently, the law says a victim can’t give consent to sex if they are “mentally incapacitated” by alcohol, but only when the victim “involuntarily” drinks to the point of being drunk. Cuomo’s proposal would expand the definition of the law to say a person who drinks voluntarily and gets drunk also is incapable of providing consent for sex.

    “A loophole in current law allows rapists to walk free and vacate their heinous crimes based on a legal technicality," Cuomo said. "Our laws must protect the people of this state — not condone rape as a punishment for consuming alcohol. With this proposal we are saying enough is enough and taking action to close this nonsensical loophole and help end the culture of abuse once and for all."

     There was no immediate comment from the Democratic majorities of the Senate and Assembly. The proposal is part of Cuomo’s State of the State speech to the Legislature scheduled for January.

    In August, NBC in New York reported that Manhattan District Attorney Cyrus Vance had urged Cuomo to change the law to close the loophole.

"Under current law, a voluntarily intoxicated individual is not considered 'mentally incapacitated,'" stated a 2018 letter from Vance to Cuomo obtained by NBC. "Therefore, prosecutors cannot bring sex crime charges in cases where the victim became voluntarily intoxicated and was unable to consent, even if a reasonable person would have understood that victim was incapacitated." 

At the time, Cuomo's office said it hadn't received the letter, but pledged to act on Vance's concern.

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