I-Team: Manhattan District Attorney Says New York Rape Law Fails to Protect Drunk Women

The top prosecutor in Manhattan is warning women that if they drink to the point of intoxication, New York’s sex crime statutes may not protect them from rapists.

In a 2018 letter obtained by the I-Team, District Attorney Cyrus Vance implored Gov. Cuomo to support closing what he calls a loophole in the New York Penal Code. (Scroll down to read the letter in its entirety). 

"Under current law, a voluntarily intoxicated individual is not considered 'mentally incapacitated,'" the letter reads. "Therefore, prosecutors cannot bring sex crime charges in cases where the victim became voluntarily intoxicated and was unable to consent, even if a reasonable person would have understood that victim was incapacitated." 

In an exclusive interview with the I-Team, Vance said Cuomo has yet to formally respond to his letter, but he is looking for lawmakers in the State Senate and Assembly to sponsor legislation that would close the loophole. 

"I think people actually would be totally surprised if they learned that this was the law," Vance said. "The law has a loophole and it’s a loophole that can be fixed." 

Rich Azzopardi, a spokesman for Governor Cuomo, declined to specifically address whether Cuomo believes there is a loophole in the rape law. But he suggested this is the first the Governor has heard of DA Vance’s 2018 letter.

“We have no record of receiving this letter,” Azzopardi said. “But anything we can do to better protect victims and build upon the progress we made this year we will do. We look forward to engaging with the legislature on this issue.”

Because voluntary alcohol consumption, even to the point of severe impairment, does not meet New York’s standard for mental incapacity, Vance said prosecutors in his office have declined taking some cases where alleged rape victims were drunk. 

"Among the most common fact patterns that we have in sex crime investigations is this situation, where a woman is intoxicated because of her drinking at a party or a bar and then ends up being assaulted sexually by a man," Vance said. "There’s a real problem that we have with people getting drunk and then being taken advantage of." 

One woman, who asked to remain anonymous because her rape allegation was not pursued by the Manhattan district attorney's office, said it makes no sense to let sexual predators off the hook simply because their victims voluntarily consumed alcohol. 

"Why is there no protection for rape victims who drink?" she said.  "If somebody is inebriated to the point where they are not conscious -- whether they say 'no'or not -- that should still be considered rape." 

Vance's letter lobbying for a tougher rape statute came in April of 2018, after the prosecutor had already fielded years of jabs from critics who say he hasn't been tough enough on powerful men accused of sexually assaulting women. 

At the beginning of his tenure as district attorney, Vance made the controversial decision to drop charges against Dominique Strauss Kahn, the former head of the International Monetary Fund, who was accused of sexually assaulting an employee inside a Manhattan hotel. 

Later, Vance was again criticized for a 2015 decision not to bring sexual assault charges against Harvey Weinstein after an Italian model recorded the movie mogul apparently admitting to unwanted sexual contact. 

In both of those cases, Vance said he could not prove the allegations beyond a reasonable doubt. 

More recently, Vance's office was criticized after an assistant district attorney supported Jeffrey Epstein's bid for a less restrictive sex offender designation. 

Vance's office has said the assistant district attorney was of unaware of the support for Epstein, and that it was a mistake to intervene in the case. 

Dan Quart, a Democratic New York Assembly member who has been a frequent critic of Vance, said the letter about the voluntary intoxication rape loophole seems like justification for Vance's previous decisions to avoid tough cases. 

"Through that letter this district attorney, Cy Vance, says you are locked out of the courtroom. That my hands are tied. That I can't fight for you or I won't fight for you," Quart said. 

Quart said Vance is ignoring other language in the New York Penal Code that allows prosecutors to charge rape when victims are too drunk to consent. Despite that, Quart said he would consider proposing legislation to tweak the statute if it would make the Manhattan district attorney more likely to haul accused sexual predators to court. 

Carrie Goldberg, an attorney who represents survivors of sexual assault and harassment, said she would welcome a change in the rape law to make clear it's not OK to have sex with someone too drunk to consent. 

"We absolutely need legislative reform in the Penal Code but that is separate from the fact that we need a powerful DA who isn't afraid to litigate cases," said Goldberg. 

Vance responded to his critics, insisting he has been willing to take difficult sex crime cases to trial, including the case against former NYPD officers Kenneth Moreno and Franklin Mata, two cops accused of burglarizing and raping a drunk woman who was vomiting and needed their help to get into her apartment. 

The men always insisted on their innocence. Questions about the reliability of the victim's memory and lack of DNA prompted the jury to acquit on the rape and burglary charges. Both cops were convicted of official misconduct and fired. 

"Anyone who suggests that we aren't sincere about helping survivors of sex crimes is just not only wrong but isn't watching what we're doing," Vance said.