Res. No. 728
Resolution calling on the New York State Legislature to pass, and the Governor to sign, S.10632/A.101 or similar legislation, in relation to prohibiting the use of intoxication of the victim as a defense in sex crimes
By Council Members Narcisse, Farías, Brewer and Dinowitz
Whereas, Sexual violence is a serious public safety and public health concern that can cause lasting physical, psychological, and emotional harm to survivors, and the law must provide meaningful protections for individuals who are unable to consent to sexual activity; and
Whereas, Under New York State Penal Law §130.05, lack of consent is an element of sex offenses, and the law identifies circumstances in which a person is incapable of consent, including certain forms of physical helplessness and mental incapacitation; and
Whereas, Under current New York law, mental incapacitation due to the influence of a narcotic or intoxicating substance generally requires that the substance have been administered to the victim without their consent, creating a distinction between individuals who are involuntarily intoxicated and those who voluntarily consume alcohol or drugs; and
Whereas, This distinction can create significant barriers to prosecuting sexual offenses when a victim voluntarily consumes alcohol or drugs, but becomes so intoxicated that they are incapable of controlling their conduct, even when the circumstances of the victim’s incapacitation should have been apparent to the person engaging in sexual activity with them; and
Whereas, The circumstances under which a person becomes intoxicated should not determine whether they are entitled to legal protection from sexual exploitation, as voluntarily consuming alcohol or drugs does not constitute consent to sexual activity; and
Whereas, As reported by The Associated Press in September 2026, renewed scrutiny of New York’s laws followed allegations of sexual assault at a Cornell University fraternity house involving a student who reportedly became incapacitated after consuming alcohol and drugs, with the case prompting renewed public debate over the legal distinction between voluntary and involuntary intoxication; and
Whereas, These allegations underscore the importance of ensuring that New York’s laws adequately address circumstances in which an individual may be unable to consent to sexual activity because of severe intoxication, regardless of whether the intoxicating substance was voluntarily consumed, while preserving the statutory requirements necessary to establish criminal liability; and
Whereas, According to The Associated Press, other states, including Minnesota, Michigan, and Texas, have amended their sexual assault laws to address the role of voluntary intoxication in determining whether a person was capable of consenting to sexual activity, demonstrating that legislative action is possible to strengthen protections for survivors; and
Whereas, S.10632, sponsored by New York State Senator Nathalia Fernandez, and A.101, sponsored by New York State Assemblymember Jeffrey Dinowitz, would amend the Penal Law to establish an additional circumstance in which lack of consent may be established for specified sex offenses when a victim is under the influence of a drug, intoxicant, or other substance to a degree that renders the victim incapable of controlling their conduct, provided that the victim’s condition was known or reasonably should have been known to a person in the actor’s situation; and
Whereas, The legislation would establish lack of consent independent from forcible compulsion, thereby allowing the criminal justice system to consider whether a victim’s severe intoxication rendered them incapable of controlling their conduct, and whether the defendant knew or reasonably should have known of that condition; and
Whereas, The enactment of S.10632/A.101, or similar legislation, would help ensure that a victim’s voluntary consumption of alcohol or drugs does not, by itself, prevent the criminal justice system from considering whether sexual activity occurred under circumstances in which the victim was incapable of controlling their conduct, and the defendant knew or reasonably should have known of that condition; now, therefore, be it
Resolved, That the Council of the City of New York calls on the New York State Legislature to pass, and the Governor to sign, S.10632/A.101 or similar legislation, in relation to prohibiting the use of intoxication of the victim as a defense in sex crimes.
CMB
LS#27071/27130/27151/27161
10/28/2026