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THE LOOPHOLE MYTH: Voluntary Intoxication is not a Rape Pass · L3G4L

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  Fact check. Is it nearly impossible to prove
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  rape if the victim was voluntarily intoxicated?
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  No. Dangerous misinformation is circulating across
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  news sources that New York gives a free pass
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  to rapists whose victims were already drunk.
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  This is L3G4L News with Ed Lyman in Los Angeles.
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  New sources have been falsely reporting that
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  if a victim is voluntarily intoxicated in New
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  York, it is nearly impossible to prove rape due
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  to a legal loophole in consent laws. This is
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  wildly false information that could cause a victim
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  to think that if she got drunk before being raped,
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  her rapist gets a free pass. Nothing could be
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  further from the truth. Here's the false claim.
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  CNN reported that resurfaced allegations of a
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  gang rape at a Cornell University fraternity
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  house have renewed outrage over what experts
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  call a legal loophole in New York's and other
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  states sexual assault laws that can make it nearly
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  impossible for survivors to seek justice if they
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  voluntarily consumed alcohol or drugs. before
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  an assault. So this and similarly false statements
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  were repeated by other news sources, including
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  Associated Press and NBC New York. So why is
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  this false? Well, under New York law, first degree
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  rape requires proof of non-consensual vaginal,
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  oral, or anal sex. Lack of consent can be proven
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  in any of the following ways, regardless of whether
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  the victim is voluntarily intoxicated from drugs
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  or alcohol. For example, if the rapist used physical
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  force or made certain express or implied threats
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  or the victim was mentally disabled or the victim
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  was physically helpless or the victim was underage.
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  There's also some situations where a person's
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  status, such as maybe they're a ward of the state,
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  like an inmate or somebody committed to a mental
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  hospital, those types of people can't form consent.
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  as to having sex with employees that work at
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  the prison or hospital. The so -called legal
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  loophole has to do with a different method called
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  mental incapacity that allows prosecutors to
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  prove lack of consent in situations where the
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  victim was essentially poisoned by narcotics
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  or intoxicating substances. Here's how the statute
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  defines the term. Mentally incapacitated. means
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  that a person is rendered temporarily incapable
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  of appraising or controlling his conduct owing
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  to the influence of a narcotic or intoxicating
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  substance administered to him without his consent
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  or to any other act committed upon him without
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  his consent. Advocates falsely claim this language
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  creates a legal loophole that makes it nearly
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  impossible to prove rape when the victim is voluntarily
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  intoxicated. To get there, they ignore all of
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  the other ways that I just described that prove
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  lack of consent. In all of those other situations
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  I first described, whether somebody's intoxicated
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  or not is irrelevant. So let's take a look at
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  a couple of hypotheticals. The first one is a
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  drunken 13 -year -old. Imagine a situation in
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  which a 13 -year -old child voluntarily gets
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  drunk with her friends only to be molested by
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  an adult. Because she had been drinking, the
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  child is afraid to tell her parents or report
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  it to the police. She looks up this topic online
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  only to come across a report from CNN that says
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  rape will be nearly impossible to prove because
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  she was voluntarily intoxicated. So the child
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  decides not to tell her parents, let alone report
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  it to the police. In this scenario, the loophole
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  misinformation would have caused serious injustice.
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  A prosecutor could prove lack of consent simply
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  by showing the jury that the child was underage.
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  And there are still many other ways to prove
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  lack of consent for which voluntary intoxication
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  is irrelevant. Let's take a look at the hypothetical
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  Jane Doe, a 20 -year -old. For example, assume
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  the victim is not a child, but a 20 -year -old
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  college student, Jane Doe. She voluntarily consumes
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  10 drinks over the course of three hours. Then
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  she goes to a fraternity house where she continues
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  drinking, smokes pot, and is given multiple rounds
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  of ketamine over a six -hour period until she
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  becomes unconscious. Here, lack of consent can
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  still be shown in a first -degree rape case by
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  proving that the rapist used physical force,
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  threats, or that she became physically helpless
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  as a result of the drugs and alcohol she had
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  consumed. means that a person is unconscious
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  or, for any other reason, is physically unable
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  to communicate unwillingness to enact. So this
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  provision doesn't ask why she became unconscious
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  or why she was unable to communicate. New York
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  appellate courts have even held that a victim
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  can be physically helpless as a result of alcohol
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  she consumed voluntarily. Now, states such as
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  California, where I practice law, have a provision
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  that lack of consent can be specifically proven
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  if the victim was willingly intoxicated, specifically
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  if a person is prevented from resisting by an
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  intoxicating or anesthetic substance or a controlled
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  substance, and this condition was known or reasonably
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  should have been known by the accused. The bottom
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  line is that victim groups are pushing to expand
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  the ways that lack of consent can be proven in
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  New York. They have their hearts in the right
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  place, but they are dangerously misstating the
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  current law by claiming it is nearly impossible
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  to prove rape in New York if the victim was voluntarily
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  intoxicated. As demonstrated in this article,
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  in New York, all but one of the methods of proving
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  lack of consent are available to prove rape regardless
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  of voluntary intoxication. Describing the New
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  York statute that allows the prosecution to prove
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  lack of consent when a victim is poisoned by
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  narcotics or intoxicants, a loophole, is inept.
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  This misinformation has serious consequences.
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  It can prevent victims from coming forward. It's
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  also important to know that in New York, certain
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  sex crimes other than first -degree rape have
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  additional methods to prove lack of consent that
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  are not discussed in this article. And New York
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  has other sex crimes, including sex trafficking,
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  where consent is irrelevant. Personally, I think
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  it's a good thing if New Yorkers want to create
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  another method of proving lack of consent based
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  on a victim being willfully intoxicated. But
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  spreading falsehoods about existing law to get
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  there is dangerous. Please make sure to hit follow,
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