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PUBLISHED 9/19/2025 by Livia Follet

Under current New York law, if someone was drinking by choice when they were assaulted, prosecutors can decide not to pursue the case. This law provides prosecutors with an out when it comes to sexual assault—and statistics show they take it: In 2019, prosecutors dropped nearly half of all sexual assault cases in the Manhattan district attorney’s office. A bill proposed in the state legislature is looking to make it harder for prosecutors to throw out sexual assault and rape cases by prohibiting the use of intoxication of the victim as a defense. 

“It’s a staggering injustice. Being unable to say no doesn’t mean you have no right to say no,” says Ann Olivarius, a leading women’s rights attorney and longtime advocate for survivors of sexual assault and gender-based violence. 

The bill would guarantee that if a victim is voluntarily intoxicated at the time of their assault, they cannot be denied protection under the law. Some form of an intoxication loophole exists in more than 20 states. However, whether or not a state has eliminated the loophole doesn’t necessarily fall along party lines. While New York is still working to close its loophole, Texas eliminated its voluntary intoxication loophole this summer. 

“If this bill passes, survivors in New York won’t have to ask themselves, ‘Well, maybe I was asking for it by having that beer,’” says Olivarius. 

The process of amending New York’s law to support survivors and provide them with legal recourse began at the turn of the decade. Former Gov. Andrew Cuomo failed to advance the bill which was in his 2020 budget. He later resigned in 2021 a week after the New York attorney general released an investigation that found Cuomo had sexually harassed at least 11 women. 

Having a drink doesn’t mean you surrender your bodily autonomy. The onus on not to rape and the punishment for it must be on the perpetrator.

Ann Olivarius

The bill needs to be passed through the state’s Senate and Assembly, then be signed by Gov. Kathy Hochul. It’s not yet clear when the bill will be scheduled for a vote. Olivarius says that the bill is likely falling victim to New York’s “famous dysfunctional state government”—that is, Republicans are unlikely to support the bill if state Democrats do, and vice versa. 

If passed, the bill would reshape the legal landscape, representing a crucial step for survivors. At least half of all sexual assault cases are associated with the victim or the perpetrator’s alcohol consumption.

NOW-NYC has been advocating for the passage of this bill since 2021. Carl Heastie, Speaker of the Assembly has not met with us directly to discuss the bill. We have yet to receive an explanation as to  why he does not support the measure. The Senate has passed it multiple years.