Rape Redefinition Looks to Sew Loophole in Victim Protection

When at a party or a bar, there are plenty of things to worry about: spilling your drink, losing your wallet and making it home before the sun rises. Rape, however, should not be one of them. 

On Sept. 4, the Times Union brought attention to a loophole in New York State law regarding the prosecution of rape. 

Currently, the law only protects victims who are rendered unconscious due to intoxication or due to substances administered without their consent. It does not cover someone who is impaired, but conscious, due to voluntary intoxication.  

With this omission from the law, a defendant can make the argument that a victim consented to sexual activity despite them not thinking clearly. 

“I think that this has a serious chilling effect on victims of sexual assault coming forward,” said Associate Professor of Women’s, Gender and Sexuality Studies Karl Bryan. “We know that many victims of sexual assault do not come forward now for a variety of reasons; this only makes it less likely for people to come forward.” 

Now, the District Attorneys Association of the State of New York (DAASNY) wants to amend state law so victims can press charges against a person who should have known that the victim was unable to give consent due to the influence of alcohol or drugs. 

“Perpetrators of sexual assault should not be shielded from prosecution just because the victim voluntarily consumed drugs or alcohol,” read a memorandum by the DAASNY. 

Senator Alessandra Biaggi, a Westchester County Democrat, introduced this amended legislation after Manhattan District Attorney Cy Vance expressed his concerns about how the state law is written. The law’s language currently leaves a lot of room for victim blaming, but Biaggi hopes that the amended law will bring more abusers to justice. 

The proposal could also potentially prevent a victim’s voluntary intoxication to be used as a defense in sex crime cases. 

With the amount of kegs and jungle juice, this issue of consent runs rampant on college campuses in particular. Schenectady County District Attorney Bob Carney advocates for the law regarding consent to be updated, but believes that changes could be tricky. 

“It’s a difficult line between consent and lack of consent when alcohol is involved,” Carney said to the Times Union.

However, a member from the New Paltz Students for Sensible Drug Policy (SSDP) thinks otherwise. 

“Any sensible person can tell if someone can’t consent. It’s an issue of people ignoring that,” a member of SSDP said. “While bolstering our ability to prosecute people is a good thing, it’s only a first step and not a conclusive solution.”

The member from SSDP suggested a step that could be taken is for the health education departments in public and private schools to add “consent” to their sex education curriculums. 

SUNY New Paltz adheres and enforces the concept of affirmative consent, which states that “affirmative consent is a knowing, voluntary and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity or gender expression.”

If this law is amended, it is uncertain how it will affect the provisions of Title IX and the amount of sexual assault cases that go unreported. 

“It can be challenging to explore ‘what if’ questions, as we cannot predict what legislation will change at the federal or state level,” said Title IX Coordinator Emma Morcone. “The campus always consults with SUNY Administration about how changes may impact our current practices. We regularly review our policies and procedures to ensure we are providing the best possible support to our campus and promoting a culture of safety and respect for students.”