What to know about New York’s rape laws

National outrage over an alleged gang rape at Cornell University in 2024 has put changing New York’s sexual assault consent laws at the forefront of state leaders' minds. An anonymous former Cornell student, known as Jane Doe, filed a civil case last month alleging she was sexually assaulted for hours by seven men at a fraternity house after drinking and knowingly doing drugs. What’s known as the “voluntary intoxication loophole” makes it extremely difficult to prosecute sex crimes when the victim had chosen to become intoxicated when it took place. 

Tompkins County District Attorney’s Office prosecutors declined to bring charges against the young men two years ago. DA Matthew Van Houten didn’t cite the loophole as the specific reason why, but seemed to allude to it as part of his explanation. A bill to close that loophole and bar the defense from using a victim’s choice to be intoxicated against them has not cleared the state Legislature for seven years. 

But the inaction – both in Albany and the prosecution – has ignited renewed political pressure to do something. Gov. Kathy Hochul has already agreed, and Assembly members appointed to a special task force by Speaker Carl Heastie are set to meet in the coming weeks to make legislative recommendations.

Here’s what you need to know about the state’s rape laws as they take center stage in criminal justice talks.

HOW HAVE NEW YORK’S RAPE LAWS CHANGED?

Rape laws have changed significantly in the Empire State over the last five decades. In the 2000s, the state repealed the statute of limitations on rape, and made sex trafficking a crime. State lawmakers revisted rape laws more recently, and updated the definition of rape in 2024 to include all forms of nonconsensual forced penetration as separate criminal acts.

But until the corroboration requirement was eliminated in the ’70s, a woman’s testimony alone didn't cut it for sufficient evidence if she was the victim of a rape. It did for robbery, but not sexual assault. And it wasn't considered rape unless the victim fought back, even if it was a violent attack. 

The state legally recognized marital rape after a landmark state court decision, People v. Liberta, in 1984. The Sexual Assault Reform Act of 2000 modernized the state’s sex crime statutes, and significantly changed how the legal system evaluated a “lack of consent.” The law contained a “No Means No” provision that says someone can be charged with third-degree rape if they forcibly have sex with someone who clearly expresses lack of consent.

More recently, Hochul signed the Rape is Rape Act at the start of 2024 to expand the legal definition of rape to cover nonpenetrative foreced sexual acts that didn’t previously fall under that definition. The Assembly passed it a dozen times before the state Senate finally approved it and sent it to Hochul’s desk in 2023.

WHAT DO THE LAWS SAY NOW?

Crimes of first-, second- and third-degree rape in the state are determined by three main factors: the presence of physical violence or helplessness, the age of the individuals involved and the victim's capacity to legally consent. Crimes of first-degree rape include forcible compulsion, or the force, or threat of force to overcome someone's lack of consent, or if the victim is less than 11 years old or less than 13 years old and the abuser is 18 or older.

First-degree rape is a class B violent felony with a sentence of five to 25 years. Second-degree rape, which carry a penalty of two to seven years, applies if the perpetrator is 18 or older with a victim under 15, or having sex with a person who is incapable of consent because they are mentally disabled or mentally incapacitated. That definition is the voluntary intoxication loophole advocates are pushing legislative leaders to amend.

As it stands, the definition of “mentally incapacitated” means a person cannot control their conduct because of a narcotic or intoxicating substance administered without consent, or because they were drugged involuntarily, like with a spiked drink. To prove first-degree rape under current law, prosecutors must have evidence the victim was either unconscious or so close to unconscious that they could not speak – and that can be nearly impossible.  As it stands, the current law doesn't protect someone who can’t stand up, or someone is able to speak even if what they’re saying doesn’t make sense. If a person cannot prove they were fully unconscious, the mentally incapacitated statute is all a victim has been able to lean on for justice.

“I see cases all the time where this is the conundrum, (where) she was so far gone that she only has partial memory, but she can't prove that she was unconscious or incapable of speech,” said Jane Manning, director of nonprofit Women's Equal Justice. “That’s the heart of the problem.”

WHAT WOULD THE EXISTING BILL TO CLOSE THE ‘VOLUNTARY INTOXICATION’ LOOPHOLE DO?

Existing legislation to close the voluntary intoxication loophole would make nonconsensual sex with an incapacitated person a third-degree rape, class E felony. It would expand circumstances where prosecutors could apply the charge when a perpetrator knew, or reasonably should have known, that a victim was too intoxicated to legally consent to sexual intercourse. 

In other words, if the current version becomes law, it would become a crime to have sex with a semi-conscious person who is unable to consent, or was so heavily under the influence of drugs or alcohol that they cannot control their conduct, and eliminate the loophole at the center of the debate sparked by the Cornell case. But it’s important to note that the legislation does not make it illegal to have sex under the influence of alcohol, and does not propose making any level of voluntary intoxication mean that a person cannot give consent. It also does not establish a baseline level of voluntary drinking that automatically would make a person incapable of consent.

WHAT DOES THE OPPOSITION SAY ABOUT THE BILL?

The Cornell case has renewed interest in addressing the issue, but critics argue the bill may not have led to a different outcome from the Tompkins County DA. That’s a question state Attorney General Letitia James’ office will answer in the coming months, as Hochul appointed James as a special prosecutor in the case.

The State Association of Criminal Defense Lawyers has routinely opposed the bill, arguing the legal definition of “mentally incapacitated” is too vague, and should mandate outward physical signs of incapacitation for a person to be able to reasonably discern impairment.

Yung-Mi Lee, the association’s former president, said convicting a person of rape requires criminal intent. The action of slipping drugs into someone’s drink, for example, shows clear intent to commit a crime. She also told City & State it would be problematic for the definition of rape to include a person who’s temporarily incapacitated.

The state Senate has unanimously passed multiple versions of the measure over the years, but the bill has routinely stalled in the Assembly, and that isn’t by accident. Some Assembly members have been wary that such a change could increase false allegations and convictions, which already disproportionately impact people of color and people living in poverty.

WHAT OTHER RAPE LAWS COULD BE ON THE TABLE?

While the voluntary intoxication bill is the top priority for lawmakers, that won't be the only rape laws on their docket. Others could include another longstanding push to allow prosecutors to use a person’s prior uncharged sexual offenses during as evidence in a separate sexual assault trial – known as the Harvey Weinstein bill, and legislation to remove the statute of limitations on certain sex trafficking crimes.