Cuomo and New York's "rape loophole"

In New York State, Governor Andrew Cuomo, in cooperation with Manhattan District Attorney Cy Vance Jr. and others, has been pushing for new legislation that would supposedly close the “rape loophole” in state law. I’ve heard of tax loopholes and supposed firearms background check loopholes, but until now I didn’t know we had any exceptions that made rape legal. What’s all this about?

The subject being addressed is the idea that women who have voluntarily imbibed alcoholic beverages or partaken of recreational drugs can somehow be raped and have their accusers let off the hook. (The keyword here is “voluntarily” as opposed to someone slipping them a date rape drug or overserving them booze.) Leaving aside for the moment the problems with that description, what does the governor propose to do about it? The new legislation he’s pushing for would “remove the power to consent from anyone who has had too much to drink or is otherwise impaired.”

Enter Karol Markowicz at the New York Post. She is most assuredly not in the “pro-rape” camp (if such a camp exists), but she sees this proposal as one that removes agency from women in such matters and treats them like children.

While it’s true that some caddish men take advantage of drunken women, to put the sole onus of ­responsibility for a drunken encounter on one party — the male — is to infantilize women. It also allows women to destroy the lives of men should they come to regret a drunken — but willing — sexual encounter.

That telegraphs a message to women that they are weak and ­irresponsible — that they can act as imprudently as they wish, and then offload all of the responsibility to the partner they seemed to like a lot more when their blood-alcohol levels were surging the night before.

That’s not to say that we should let creeps go scot-free. And we should, of course, teach boys and men to steer clear of caddish ways. But laws that positively ­encourage imprudence on the part of women do nothing to keep them safe; if anything, they make bad choices more, not less, likely. Honor and prudence should go hand-in-hand.

Questions of sobriety and consent have long been a gray area when it comes to prosecuting date rape cases. But this proposal in New York is clearly a solution in search of a problem. As Markowicz points out, offering quotes from another attorney, voluntary intoxication is already used to prosecute suspects who prey on drunken women.

Therein lies the problem with any approach offered in these scenarios. At what point in the evening does a woman (because let’s face it, it’s almost always the woman) pass the point of being pleasantly buzzed and feeling romantic toward her date and reach the stage of being so plastered/stoned that she’s unable to give meaningful consent? Unless she happens to be dating a guy who is either a doctor or a law enforcement officer that carries around a breathalyzer 24/7 and she doesn’t mind being tested throughout the evening, we’re always going to be on shaky ground.

Only the woman can say for sure if she’s still in solid control of her decision making. The problem is, she may not realize herself when she’s crossed that line. A reasonably observant guy should be able to tell when a woman is too hammered to stand without swaying or when she’s still reciting flawless prose while sipping her first glass of wine of the evening. But at some point in that journey from A to B, we cross into the aforementioned gray area. The eternal battle in court for juries to struggle with is, as Markowicz implies, knowing whether they’re dealing with someone who was truly so far gone that they had lost the thread or someone regretting a hookup that they thought better of later.

But either way, does this proposal do anything to address the puzzle I just described? No. It simply removes all ownership from the woman and declares that if she’s had more than a couple of drinks, she’s incapable of giving informed consent. Under those guidelines, even if she didn’t make an accusation or complain, her friend could accuse the man of rape and potentially get a conviction.

If this isn’t all for show and further proof of his woke credentials, Cuomo may believe he’s doing something to help prevent sexual abuse of women. That’s admirable. But this is a flawed and troubling solution at best.

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David Strom 5:21 PM on March 31, 2023