A majority of women, when under the influence of alcohol, are more likely to be raped. The data has been out there since 2004 when a study published by the National College of Medicine found that roughly one in 20 women surveyed reported being raped, and nearly three quarters of the victims were raped while intoxicated.

 

Despite this, almost twenty years later, New York State law still stigmatizes victims of sexual crimes, protecting only those victims who become mentally incapacitated through intoxication at the hands of a third party e.g. through a date-rape drug. Some Albany lawmakers are aiming to change this.

 

State Sen. Alessandra Biaggi (S.D. 34) and other legislators and advocates are calling for the law to be amended before the summer recess in order to close the so-called “voluntary intoxication loophole,” and ensure equal protection for other sexual assault victims who may end up becoming intoxicated voluntarily.

 

They say this will avoid victim blaming, will protect all survivors of rape, regardless of how they become intoxicated, and will send a message to all New Yorkers that a person’s choice to drink alcohol or consume drugs is not an invitation to be sexually assaulted.

 

“In our effort to transform the culture around sexual assault in New York, it is imperative that we address policy failures that have silenced survivors for years,” Biaggi said. “The voluntary intoxication loophole perpetuates a dangerous routine of victim-blaming and prevents many survivors from seeking justice.”

 

The true number of sexual crime victims in 2004 was likely much higher than that published by the National College of Medicine at the time. According to the nonprofit, RAINN (Rape, Abuse & Incest National Network), based on data from a 2014 National Crime Victimization Survey (NCVS), two out of three sexual assaults go unreported.

 

In 2018, during the initial wave of the #MeToo movement, various protests took place across the country in support of victims of sexual assault, including in New York City. In October, the NYPD confirmed that 23 percent of rape cases reported as of September 2018, related to rape incidents which had occurred prior to 2018, a trend which suggested that the culture was shifting, and victims were beginning to feel more courageous about coming forward to report historical sex crimes.

 

During an NYPD press conference held on Oct. 3, 2018, Mayor Bill de Blasio said, “In the last year, we’ve seen a lot more [sexual assault/rape] reports.” He added, “I think that is directly connected to the kind of conversation we’re finally having in our society, acknowledging the horrible number of sexual assaults against women that have been tragically, inappropriately the norm for far too long in this country, and must stop.”

 

Meanwhile, Lindsey Pratt, LMHC, a Manhattan-based psychotherapist who specializes in treating victims of sexual assault, said, in her experience, the legal process for survivors definitely comes into play in therapy. “There is a lot of difficulty in making those choices of whether or not to go forward and press charges,” she said. In fact, according to RAINN, out of every 1,000 sexual assaults reported nationally, 975 perpetrators walk free. Meanwhile, an American is sexually assaulted every 68 seconds.

In the Bronx, there were 327 incidents of rape reported in 2020. So far this year, rapes are up 13 percent compared to 2020, while “other sex crimes” are up 34.3 percent year-to-date compared to last year. Meanwhile, in terms of UCR rape, which is not statutory rape and is not classified as an “other sex crime,” the year-to-date figures are also up, by 17.8 percent compared to last year. In fact, in the last week alone, both rapes and “other sex crimes” across the borough were up by 50 percent and 54.5 percent respectively, compared to the same period last year, while figures for UCR rape are up 22.2 percent compared to last year.

 

State Sen. James Skoufis (S.D. 39) also supports the proposed amendment to the law. “There is absolutely no reality in which rape or sexual assault are defensible – period,” Skoufis said. “A victim’s level of intoxication isn’t a get-out-of-jail-free card, and while it seems unthinkable that an attacker could claim otherwise at this point in our conversations around sex and consent, we’ve seen this defense play out time and time again. I am grateful to Sen. Biaggi for leading the charge on this vital piece of legislation to protect and empower survivors and encourage just outcomes for those who commit these despicable acts of violence,” he added.  

 

Though the proposed amendment is gender neutral, as is the prevailing law, it’s clear that if passed, it would undoubtedly benefit women since, according to data from RAINN, nine out of every 10 victims of rape are female. When asked what the victims were doing at the time the assaults occurred, almost half said they were either sleeping, or performing another activity at home.

 

Meanwhile, according to the Centers for Disease Control & Prevention (CDC), men are almost twice as likely to binge drink as women. The CDC reports that approximately 22 percent of men report binge drinking, and on average, do so five times a month, consuming eight drinks per binge.

 

Biaggi said that in New York State, it is said that survivors are believed, and that they are supported unequivocally. “If we want to live up to those values, we must close this loophole,” she said. “I urge the Assembly to join the Senate in standing with survivors and pass this bill before the end of session.” The bill has been sponsored in the Assembly by Assemblyman Jeffrey Dinowitz (A.D. 81). Norwood News reached out to the assemblyman for a comment as to the status of the bill at assembly level.

 

In a statement, he wrote, “There should be no question in New York that someone who sexually assaults another person will be prosecuted for their crimes, whether or not the victim was voluntarily intoxicated or not.” Dinowitz added, “This bill would update our law to make it abundantly clear that prosecutors should be pursuing criminal charges in cases where victims were intoxicated. Being drunk is not a license for someone to sexually assault you. I will continue to work hard with my colleagues to ensure that the Assembly and State Senate bills match each other so that we can help create a New York that is safer from sexual assault.”

 

Michael Polenberg is vice president of government affairs, at Safe Horizon, the nation’s largest non-profit victim services organization. He called the amendment common-sense legislation. “Perpetrators of sexual assault should not be shielded from prosecution simply because the victim voluntarily consumed alcohol, drugs or other intoxicants,” he said. “Sen. Biaggi’s bill will allow prosecutors to file sex crime charges in cases where the victim was voluntarily intoxicated to a degree that a reasonable person in the defendant’s position should have known that the victim was incapable of giving consent.”

 

Ha Jung Song and Bowook Yoon are former advertising students at New York City’s Visual School of Arts. Inspired by the #WhyIDidntReport social media campaign in 2018, they began posting blank flyers around the city asking rape and sexual assault survivors to anonymously share their reasons for not reporting what happened to them at the time the incidents occurred. The results were later displayed as part of an exhibition. One person wrote, “Because I was 15 years old, and I shouldn’t have been drinking. I must have ‘wanted it’.” Another wrote, “Because he was a co-worker, and I wanted to keep my job.”

 

Meanwhile, Elizabeth Crothers, co-founder of the Sexual Harassment Working Group said when a person, for any reason, is unable to think or to communicate clearly, he or she cannot give consent to sexual activity. “Sen. Biaggi’s and Assembly Member Dinowitz’ bill to cut this loophole will prevent offenders from using a victim’s voluntary intoxication as an excuse, and a defense for committing sexual assault,” she said. “As a survivor of sexual assault, I am keenly aware of feeble attempts to excuse perpetrators, and the law should not provide yet another refuge.”