Prohibits the use of intoxication of the victim as a defense in sex crimes where the victim is under the extreme influence of any substance which renders them incapable of appraising or controlling such victim's conduct and incapable of clearly expressing lack of consent.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A101A
SPONSOR: Dinowitz TITLE OF BILL:
An act to amend the penal law, in relation to prohibiting the use of the
intoxication of a victim as a defense to a criminal charge for sex
crimes
PURPOSE:
To allow sex crimes charges to be brought in cases where the victim had
become voluntarily intoxicated if a reasonable person in the defendant's
position should have known that the victim was incapable of giving
consent due to that intoxication.
SUMMARY OF PROVISIONS:
Section one of the bill amends paragraph (d) and adds paragraph (e) to
subdivision 2 of § 130.05 of the penal law. Paragraph (d) provides for
the inclusion that for sex offenses a lack of consent occurs when the
offense charged is sexual misconduct as defined in subdivisions one, two
and three of section 130.20 of the penal law(an actor engages in sexual
intercourse, oral sexual conduct, or anal sexual conduct with another
person without receiving such person's consent)and the victim clearly
expressed that he or she did not consent to engage in such act, and a
reasonable person in the actor's situation would have understood such
person's words and acts as an expression of lack of consent to such act
under all the circumstances.
Paragraph (e) adds that for sex offenses a lack of consent occurs where
the offense charged is sexual misconduct as defined in subdivisions one,
two and three of section 130,20 of the penal law (an actor engages in
sexual intercourse, oral sexual conduct, or anal sexual conduct with
another person without receiving such person's consent), rape in the
third degree as defined in subdivision seven, eight or nine of section
130.25 (an actor engages in sexual intercourse with another person with-
out such person's consent where such lack of consent is by reason of
some factor other than incapacity to consent), or a crime formerly
defined in subdivision three of section 130.40 of this article (an actor
engages in oral sexual conduct or anal sexual conduct with another
person without such person's consent where such lack of consent is by
reason of some factor other than incapacity to consent), in addition to
forcible compulsion, circumstances under which, at the time of the act
of vaginal sexual contact, oral sexual contact, or anal sexual contact,
the victim was clearly under the influence of any drug, intoxicant, or
other substance to such a degree which rendered the victim incapable of
controlling such person's conduct and incapable of clearly expressing
lack of consent and such condition was known or reasonably should have
been known to a person in the actor's situation.
Section two of the bill provides the effective date.
JUSTIFICATION:
Currently, victims of sex crimes in cases where the abused individual
voluntarily consumes alcohol and/or drugs to the point of intoxication
are not able to seek adequate recourse. The penal law, in its definition
of mental incapacitation, only recognizes cases where a substance is
administered involuntarily. Therefore, prosecutors are limited in their
ability to bring about charges involving cases where the abused individ-
ual voluntary consumed intoxicating substances.
As we know, mental incapacitation and the subsequent inability to
consent to sexual acts is not dependent on whether an individual volun-
tarily or involuntarily consumed an intoxicating substance.When such
arbitrary determinations are made, we advance a culture that denies a
voice to victims and further denies access to a criminal justice system
meant to support, not deny sexual abuse survivors the justice they
deserve.
PRIOR LEGISLATIVE HISTORY:
2024: A.1065-A - Rules/ S.4555-3 - Passed Senate
2023: A.1065 - Codes /S.4555-A - Passed Senate
2021-22: A.5519-A - Rules
2019-20: A.8364-C - Codes / S.6679-C - Passed Senate
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
Immediately
STATE OF NEW YORK
________________________________________________________________________
101--A
2025-2026 Regular Sessions
IN ASSEMBLY(Prefiled)
January 8, 2025
___________
Introduced by M. of A. DINOWITZ, PAULIN, LEE, OTIS, SIMON, SEAWRIGHT,
WEPRIN, SEPTIMO, HEVESI, ROSENTHAL, RA, DAVILA, STIRPE, BORES, LAVINE,
GONZALEZ-ROJAS, GLICK, SHIMSKY, LUCAS, JACOBSON, ZINERMAN, LEVENBERG,
LUNSFORD, BURDICK, BICHOTTE HERMELYN, RAMOS, BARRETT, ZACCARO, REYES,
COLTON, McMAHON, SIMONE, CRUZ, TAPIA, GANDOLFO, SLATER, JONES, CLARK,
WOERNER, ALVAREZ, SAYEGH, DeSTEFANO, BERGER, CUNNINGHAM, KELLES, COOK,
RAGA, JENSEN, BLANKENBUSH, NOVAKHOV, BUTTENSCHON, LUPARDO, GALLAHAN,
PHEFFER AMATO, STERN, ANGELINO, DE LOS SANTOS, BRAUNSTEIN,
CHANDLER-WATERMAN, ROZIC, RAJKUMAR, SANTABARBARA, TAYLOR, STECK,
ANDERSON, MANKTELOW, SEMPOLINSKI, SCHIAVONI, EPSTEIN, KAY, DURSO, KIM,
HOOKS, WRIGHT, McDONALD, LASHER, GRIFFIN, KASSAY, WIEDER, BEEPHAN,
MAHER, BAILEY, CHANG, TORRES, BURROUGHS, YEGER, JACKSON, P. CARROLL,
BENEDETTO, EACHUS, RIVERA, MOLITOR -- read once and referred to the
Committee on Codes -- reported and referred to the Committee on Rules
-- Rules Committee discharged, bill amended, ordered reprinted as
amended and recommitted to the Committee on Rules
AN ACT to amend the penal law, in relation to prohibiting the use of the
intoxication of a victim as a defense to a criminal charge for sex
crimes
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (d) of subdivision 2 of section 130.05 of the
2 penal law, as amended by chapter 23 of the laws of 2024, is amended and
3 a new paragraph (e) is added to read as follows:
4 (d) Where the offense charged is sexual misconduct as defined in
5 subdivisions one, two and three of section 130.20, rape in the third
6 degree as defined in subdivision seven, eight or nine of section 130.25,
7 or a crime formerly defined in subdivision three of section 130.40 of
8 this article, in addition to forcible compulsion, circumstances under
9 which, at the time of the act of vaginal sexual contact, oral sexual
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00357-02-5
A. 101--A 2
1 contact or anal sexual contact, the victim clearly expressed that [he or
2 she] such victim did not consent to engage in such act, and a reasonable
3 person in the actor's situation would have understood such person's
4 words and acts as an expression of lack of consent to such act under all
5 the circumstances[.];
6 (e) Where the offense charged is sexual misconduct as defined in
7 subdivisions one, two and three of section 130.20, rape in the third
8 degree as defined in subdivisions seven, eight or nine of section
9 130.25, or a crime formerly defined in subdivision three of section
10 130.40 of this article, in addition to forcible compulsion, circum-
11 stances under which, at the time of the act of vaginal sexual contact,
12 oral sexual contact or anal sexual contact, the victim was clearly under
13 the influence of any drug, intoxicant, or other substance to such a
14 degree which rendered the victim incapable of controlling such victim's
15 conduct and incapable of clearly expressing lack of consent and such
16 condition was known or reasonably should have been known to a person in
17 the actor's situation.
18 § 2. This act shall take effect immediately.
