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Drunk people can’t technically be raped under N.Y. law, prosecutor says, and that should change

Manhattan District Attorney Cyrus Vance Jr. wrote in a letter that New York law does not permit prosecutors to file sex-offense charges if an alleged victim was voluntarily intoxicated. (Mary Altaffer/AP)

The scenario is unfortunately common: A woman goes to a bar and chooses to have several drinks. Later that night, she becomes a victim of sexual assault.

In New York, Manhattan’s top prosecutor says, the assaulter cannot be charged with a sex crime because of a legal loophole stipulating that someone who becomes voluntarily intoxicated is not considered “mentally incapacitated” for purposes of giving consent.

“But there is no difference between an intoxicated individual’s ability to consent to sexual acts when he or she was drugged, and an intoxicated individual’s ability to consent when he or she voluntarily drank alcohol or took narcotics,” District Attorney Cyrus Vance Jr. wrote to Gov. Andrew M. Cuomo in an April 2018 letter reviewed by The Washington Post.

Vance’s letter, first reported this week by NBC New York, urges Cuomo to push for legislation that would eradicate the requirement that a victim’s intoxication was involuntary. If a reasonable person should have known the victim was drunk, Vance wrote, the assailant should not be shielded from prosecution.

New York is not alone in treating voluntary and involuntary intoxication differently in sexual assault cases. Most states only explicitly say that drunkenness implies a lack of consent if the intoxication was involuntary, according to a Brooklyn Law Review article published in 2016. About 10 states’ definitions of mental incapacitation included voluntary intoxication by the time the article was published.

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The law in New York relies on the fact that someone who was voluntarily intoxicated at the time of an alleged assault may not remember everything that happened, including whether they agreed to have sex, Vance told The Post. But, he said, it may have been clear to the assailant that the victim lacked the mental capacity to consent.

Vance pointed to the case of Kenneth Moreno and Franklin Mata, then-New York City police officers acquitted in 2011 of charges that they raped an intoxicated woman after helping her while on patrol. Existing law made it hard for prosecutors to prove the woman had not agreed to sex, Vance said, but it should have been apparent to the officers that she could not consent.

“No one should be able to assault you simply because you put yourself in a case where dangerous things might happen,” Vance said. “Similarly, if someone is drinking voluntarily and they become excessively drunk, that’s not a green light for someone to sexually assault you.”

The governor’s office had not responded to Vance’s 16-month-old letter as of Saturday morning, Vance said.

Rich Azzopardi, a senior adviser to Cuomo, said the governor’s office had no record of receiving the missive. He did not respond to questions about whether Cuomo believes a loophole exists or whether Cuomo will promote legislation to change the definition of “mentally incapacitated.”

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Cuomo’s office “will continue to ‎do everything we can to protect victims, bring abusers (to) justice and build upon the work we’ve done, which includes enacting the Child Victims Act, extending the statute of limitations for second- and third-degree rape, and putting into place the strongest protections in the nation to combat sexual assault on college campuses and sexual harassment in the workplace,” Azzopardi said in a statement.

State Sen. Alessandra Biaggi (D-Bronx/Westchester), on Friday introduced a bill that would expand the definition of mentally incapacitated to include someone who has become voluntarily intoxicated. She said she was unaware of the exception for voluntary drunkenness until this past week and hoped the legislature would pass the bill quickly when it reconvenes in January.

“If the law doesn’t protect them, how can we expect these people that are being abused to speak up, ever? We can’t,” Biaggi told The Post. “So the law has to at least be on par with a place where we can protect people and hopefully change the culture.”

Alexandra Zeitz-Moskin, a spokeswoman for the New York City Alliance Against Sexual Assault, said the current definition of mental incapacitation underscores the societal assumption that someone who is drinking takes on a certain degree of risk. Changing the law, she predicted, will be difficult.

“I think it will be a really challenging feat, actually, and the reason that it’s been so pervasive in a lot of states is that there is a cultural perception that if someone has been drinking, that in some ways they are consenting,” Zeitz-Moskin said.

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Vance, known as a reform-minded prosecutor, has been criticized by some as too soft on alleged sexual abusers. His office in 2011 dropped charges against Dominique Strauss-Kahn, former head of the International Monetary Fund, after a maid alleged he had forced her to perform sexual acts. In 2015, Vance declined to prosecute now-disgraced film mogul Harvey Weinstein for allegedly groping a woman without her consent.

Carrie Goldberg, a victims’ rights attorney in New York City, told The Post that although she supports expanding the definition of mental incapacitation, she also felt Vance’s letter made excuses for his decisions not to prosecute difficult sex-crimes cases.

Someone who sexually assaulted a voluntarily intoxicated person could be criminally charged under other sections of state law, Goldberg said. If someone uses forcible compulsion — that is, overpowers a victim with physical force or threats — to compel a drunk person to have sex, Goldberg said the person lacked consent and could be prosecuted. She said a situation almost always involves forcible compulsion when one person is too drunk to resist sexual advances.

Vance said his prosecutors had used the laws available to them to pursue all the sexual assault cases they thought they could win.

“This is not a group that’s interested in trying to favor individuals who they think sexually assaulted someone,” he said. “… If we have a charge that we think we can prove, we do.”

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