U.S. states are inconsistent in how they treat voluntary drinking by an accuser. Some states now prohibit an accused person from using their accuser’s drinking as a defense to a sexual assault charge. Others, including New York, still allow prosecutors to choose not to pursue a case if the accuser was voluntarily intoxicated when the alleged assault occurred. 

Now, efforts are underway to close this “loophole” in New York’s sexual assault laws. If successful, these efforts would prevent a person accused of sexual assault from bringing up their accuser’s choice to get drunk as a defense to the charge. 

Alcohol and Sexual Assault Charges in New York

At least fifty percent of all sexual assault cases involve either an accused or an accuser who was drinking at the time, according to a 2015 study. Alcohol continues to be a common factor in many accusations and charges of rape and sexual assault across the United States. 

Many states’ sexual assault laws include provisions that state a victim is legally unable to consent if they are “mentally incapacitated.” However, many of these states recognize an exception: A person isn’t considered “mentally incapacitated” if they voluntarily consumed alcohol, even if they did so to the point of being unable to make confident decisions. 

Efforts to Foreclose a Voluntary Intoxication Defense

Approximately 20 states recognize some form of the voluntary intoxication defense. In these states, those accused of sexual assault can point out that their accuser chose to drink – even if their accuser claims they were so drunk they couldn’t consent to the sexual encounter. In some states, prosecutors may choose not to pursue charges if an accuser was voluntarily intoxicated, realizing the difficulty of establishing culpability. 

In recent years, however, several states have taken steps to foreclose this defense. In summer 2025, Texas passed the “Summer Willis Act.” The law expanded Texas’s definition of consent. Now, Texas recognizes that a person who “cannot consent because of intoxication or impairment by any substance” can bring sexual assault charges. 

Similarly, in Minnesota, state lawmakers closed the “voluntary intoxication” loophole after the Minnesota Supreme Court overturned a 2021 felony rape conviction on the grounds that the victim had taken both alcohol and narcotics before the alleged assault occurred. In Minnesota, public outcry following the state Supreme Court’s ruling prompted lawmakers to make a swift change.

New York still recognizes a voluntary intoxication defense. However, efforts are underway to change New York’s approach as well.

Two Democratic representatives from the Bronx, Senator Nathalia Fernandez and Assemblyman Jeffrey Dinowitz, recently introduced legislation in their respective chambers to close the voluntary intoxication loophole. The bills – S. 4555B in the Senate and A. 1065 in the Assembly – would prevent someone accused of sexual assault from relying on the other person’s voluntary intoxication as a defense. 

Supporters of the change say that the original exclusion is outdated. They say that closing off this defense will ensure that responsibility in sexual assault cases is placed properly, and that prosecutors will need to investigate claims and get to the bottom of accusations rather than dismissing cases out of hand. 

What To Do If You’re Accused of Sexual Assault in New York

Rape and sexual assault can be challenging cases. The underlying event – sexual contact – is often legal between consenting adult partners. However, circumstances like coercion or intoxication can blur the lines of consent. Determining whether consent existed can be challenging, especially when many sexual encounters occur in private. 

By the time you’re aware of charges against you, police and prosecutors have already begun building a case. You enter the process at a disadvantage, playing “catch-up” with the evidence and theories that are building against you. You need to narrow the gap – fast. 

If you’re accused of rape or sexual assault in New York, speak to an experienced New York criminal defense attorney as soon as possible. Choose a lawyer and a law firm with experience representing those accused of sexual assault and related crimes. 

Additional steps you can take to protect yourself, your family, and your reputation include:

• Save text messages, voicemails, and any other documents or communications related to the events or timeline associated with your case.
• If police try to question you, invoke your right to remain silent and your right to an attorney. Do not answer questions without an attorney present.
• Work with a lawyer to decide how best to handle issues with family, work, and other parts of your life. 

The team at the Brill Legal Group has experience successfully representing those charged with rape and sexual assault in New York. To learn more, contact us today.