PHOTO: RAINN, NY Lawmakers, Miss NY USA, and NY Anti-Sexual Violence Organizations Call on Lawmakers to Close New York’s Voluntary Incapacitation Loophole

Current New York statute requires that mental incapacitation result from a person being under the influence without their knowledge or consent

New York, NY - Today RAINN, Miss New York USA Rachelle Di Stasio, Assemblyman Dinowitz, Assemblyman Hevesi, Former U.S. Congresswoman Maloney, and a coalition of other New York-based anti-sexual violence organizations called on New York lawmakers to close the state’s Volutary Incapacitation Loophole.

“We must push lawmakers in New York to join 14 other states in closing the voluntary incapacitation loophole,” said Stefan Turkheimer, RAINN V​ice President of Public Policy. “These loopholes codify victim-blaming in black and white and in the state code. The decision to drink does not equal consent to sex. It’s really a no brainer to provide survivors who experience an assault while voluntarily incapacitated the same access to prosecute these crimes as other survivors.”

Assemblyman Jeffrey Dinowitz said, “It is unconscionable that in New York State, a person who perpetrates a sex crime may face no consequences when they know that the victim cannot grant consent because of intoxication. However, a gap in the law currently exists, which limits the ability of prosecutors to proceed with the case when the victim of a crime voluntarily consumed alcohol and/or drugs. Anyone who knows another individual is intoxicated to the point of being unable to grant consent and commits a sex crime should be held to justice regardless of how the victim became intoxicated. The Rape Intoxication bill, sponsored by Senator Fernandez and myself, will close this loophole.”


Under the current law in New York, only rape by a person who "knows or has reason to know that the complainant is ... mentally incapacitated" can be held accountable for their actions.

This means that, unfortunately, New York statute requires that mental incapacitation results from a person being under the influence without their agreement. This creates what is today called the Voluntary Intoxication Loophole (i.e. if the victim has themselves voluntarily become intoxicated, the rape statute does not apply.) This prevents many victims from having their case tried and thereby achieving some semblance of justice.

In New York, there are two bills to close this loophole, one in the State Assembly and one in the State Senate. To pass, this bill must be voted on at the committee level in both the Assembly and Senate, and then move to the floor of both chambers for a full vote. Once ratified, it will be submitted to Governor Hochul to be signed into law.


"When someone is passed out, passing out, or unable to clearly communicate – they are no longer able to consent,” said Chris Lake, Executive Director at Community for a Cause. “Sadly, this sex crime is all too common. The law recognizes the criminality of this in one instance, but not when the survivor is voluntarily intoxicated. Truth is, trauma knows no difference. Thankfully, we can change this just as 14 other states already have. It’s time for New York to step up. #LosetheLoophole."

"New York's current penal law says a victim of sexual assault cannot be deemed mentally incapacitated if they were voluntarily intoxicated, even if a reasonable person would have understood that victim to be incapacitated and unable to consent. This "voluntary intoxication loophole" too often denies justice and healing to survivors of sexual violence and blames them for their own assault. The law must be amended to close this glaring loophole," said Jimmy Meagher, Policy Director of Safe Horizon. "We stand ready to help State Senator Nathalia Fernandez and Assembly Member Jeffrey Dinowitz pass this critical and commonsense legislation when the Legislature returns to Albany."

“We believe survivors of sexual violence,” said Emma Davidson Tribbs, Co-Founder of National Women’s Defense League. “Voluntary intoxication is not an excuse for violence. Under New York’s current system, a victim’s voluntary intoxication is used against them, making it nearly impossible for prosecutors to push their cases. Those who are strong enough to come forward to tell their story and report a crime should be able to access all aspects of our legal system to find justice and begin healing. We applaud the State Senator Fernandez and Assemblymember Dinowitz for taking critical action on closing the voluntary intoxication loophole, and providing survivors the support they need.”



RAINN, the nation's largest anti-sexual violence organization, founded by president Scott Berkowitz in 1994, operates the National Sexual Assault Hotline. RAINN also carries out programs to prevent sexual violence, help survivors, help organizations improve their sexual assault prevention and response programs, and ensure that perpetrators are brought to justice. If you or someone you know has experienced sexual violence, free, confidential help is available 24/7 by calling 800.656.HOPE (4673) or visiting

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