It Shouldn’t Matter How You Got Too Drunk to Consent

It Shouldn’t Matter How You Got Too Drunk to Consent

It Shouldn’t Matter How You Got Too Drunk to Consent

The message in New York State law is clear: If you get drunk or high or wasted, whatever happens is your fault. We have a chance to change that.


Did you know that in New York State, if you drink to excess and are raped you can’t claim you were too drunk to give consent, as long as you consumed the alcohol voluntarily? (The same applies to drugs.) Around 30 years ago, the state legislature passed a law to protect people raped when their drinks were spiked with Rohypnol or other date-rape drugs, then a horror story much in the news. But it did not address the much more common case of people who overindulge—at a bar or a party, on a date, whatever—and are taken advantage of while incapacitated. Those people are assumed in law to be able to consent, even if they can’t stand or speak and are in a total stupor, and are as out of it as someone who had the exactly same level of intoxication secretly forced upon them. The message is clear: If you get drunk or high or wasted, whatever happens is your fault. You should have thought about that before you toasted the birthday girl too many times at the bar on Saturday night.

Don’t be ashamed if you had no idea that this state of affairs existed in our supposedly progressive, woman-friendly state. I didn’t know either. Victim-blaming is so written into our unconscious assumptions about sexual violence it gets little attention, even when voted into law by our elected representatives and written down in plain black and white. What gets forgotten, as Chris Lake of Community for a Cause wrote me in an e-mail, is this: “When we victim-blame the intoxicated, we ignore the fact that they are innocent of a crime.” The attention is fixed on them, and not on the accused perpetrator.

In a recent Zoom call with legislators and advocates, Lizzie Asher, cofounder of the Cura Collective, read a harrowing personal testimony from a rape survivor who detailed how a police officer badgered and humiliated her when she reported her rape, implying that because she was intoxicated she was both willing and untrustworthy. It was obvious that the officer either didn’t believe her or didn’t care. There was no follow-up; he was clearly annoyed by her phone calls to ask about the status of her case. It was dismissed without her even being notified, leaving her traumatized both by the rape and her attempt to report the crime. Despite flashbacks, depression, and anxiety, she wrote, “The one thing I can’t shake is my desire for justice.”

A similar situation is playing out now in the Bronx. In May two police officers were charged with the 2023 rape of a heavily intoxicated woman with whom they had been drinking in a bar. The local paper, the Norwood News, reports, “The victim was seen on surveillance video unable to stand or walk on her own, being held up by Garcia and Alcantara-Santiago by her arms, and later being carried by the defendants into a building. The following morning, the victim went to a local hospital. Medical testing identified DNA contributions from both men on the victim.”

As the law now stands, the accused perpetrators can claim she consented, and then it becomes a she said/they said: two cops versus one woman with a drinking problem. It’s reminiscent of a notorious Manhattan case 15 years ago, involving two cops and a woman so drunk her taxi driver asked the officers to carry her up to her apartment, where she claimed they raped her. The cops denied all, and rather preposterously insisted they returned twice just to check up on her and counsel her about her drinking. The cops were acquitted by a jury.

Fortunately, the law may be about to change. Sponsored in the Senate by Nathalia Fernandez and in the Assembly by Jeffrey Dinowitz, Bill A01065 / S04555-B would revise the law to include voluntary intoxication: If you are too drunk to consent, it won’t matter how you got there. (Just to reassure defense attorneys, we are not talking about a glass of wine: You have to be so drunk a reasonable person would have known that you were incapacitated. It seems to have an effect; data collected by Community for a Cause suggests that states where similar laws have been passed have seen a decrease in the number of rapes involving voluntary intoxication.) Senator Fernandes put it perfectly in an e-mail to me: “By closing this significant gap in our legal system, we ensure that survivors of sexual assault are not denied justice based on arbitrary distinctions between voluntary and involuntary intoxication. By recognizing the fundamental principle of consent regardless of substance consumption, we are affirming our commitment to supporting survivors and holding perpetrators accountable for their actions.” On the Zoom call, Assemblyman Dinowitz emphasized, “Our women colleagues are very vocal about this.”

The Senate has already passed the bill, as it has done for four of the last five years (in 2022 a last-minute technical issue prevented it from coming to a vote). In the Assembly, where it’s failed to come to the floor in previous years, its fate is less assured. It has over 70 sponsors, but will Speaker Carl Heastie bring it forward?

The legislative session ends on June 6. Speaker Heastie needs to hear that people care about this. New Yorkers can call him today at 518-455-3791 or 718-654-5836. Twenty-three states and the District of Columbia already acknowledge in law that people who drink willingly can be too drunk to consent. Let’s add New York to the list this June.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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