A legal loophole in New York City states a rapist can not be charged with rape as the victim who became voluntarily intoxicated is not considered “mentally incapacitated” when it comes to consent, according to Manhattan District Attorney, Cyrus Vance Jr.
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"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," Vance wrote to Governor Andrew Cuomo in an April 2018 letter, reviewed by The Washington Post, that remained without answer.
The letter called for new legislation to be put in place, that would abolish the condition of the victim’s involuntary intoxication.
Current law in New York is based on the fact that the victim who has willingly intoxicated herself may not remember all the facts, and in particular whether or not she/he consented.
However, it may have been clear to the assaulter that the victim did not possess the mental capacity to consent, the attorney said.
"No one should be able to assault you simply because you put yourself in a case where dangerous things might happen," he explained. "Similarly, if someone is drinking voluntarily and they become excessively drunk, that's not a green light for someone to sexually assault you."
A spokeswoman for the New York City Alliance Against Sexual Assault, Alexandra Zeitz-Moskin, said this current law reflects a general mentality for which someone who is drinking must accept the risky situations she takes.
"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 added.
Manhattan's top prosecutor, whose office dropped charges against Dominique Strauss-Kahn, former director of the International Monetary Fund (IMF) in 2011, after a maid denounced him for rape, and who refused to prosecute Harvey Weinstein in 2015 after accusations against him, has been criticized as too soft on assaulters.
A victims' rights attorney in New York City, Carrie Goldberg, said although she supports the expansion of the definition of mental incapacitation, she also felt Vance's letter excuses his decisions not to prosecute complicated sex-crimes cases.
New York is not the only state to treat voluntary and involuntary intoxication with a difference in rape cases. According to a Brooklyn Law Review article published in 2016, only 10 states' definitions of mental incapacitation include voluntarily intoxication.