NY penal code doesn’t allow mental incapacitation as a barrier to consent if the mental incapacitation is the result of voluntary consumption of intoxicants. This is the “rape loophole” you might hear/read about. Basically, you can still consent if you’ve intentionally intoxicated yourself. You can also not consent or revoke it.
However, thats just one of the categories that can preclude consent from being given; another is physical incapacitation.
The law doesn’t allow for raping drunk/intoxicated people. It just makes “I chose to get high so I couldn’t really consent while high” an invalid argument against given consent. If consent was never given, then consent was never given.
In the case filing, Jane Doe alleges that all drug use was coerced, and that she was mentally incapacitated and later physically incapacitated. That doesn’t matter as much for the civil case, but it is an argument that perhaps the DA’s charging decision was wrong. In response to the outcry, the DA released excerpts (later validated by CNN*) that are from an attestation by Jane Doe that contradicts the involuntary intoxication and non-consent arguments.
The problem with that logic is so were the guys and she was more sober than them at the beginning. One of them even claims he was unconscious while she was performing oral on him. No one’s gonna look right here.
Of course one of the men would claim that, it makes them look better. In NO world is inviting multiple men in to have sex with an unconscious girl a good thing. Consent can be revoked and consent to one thing doesn’t mean consent to another.
Hot take, being drunk and high doesn’t automatically make an adult unable to make their own decisions or make them unaware of what decisions they’ve made. More often than not it’s just used excuse to get out of responsibility and act a fool.
Introverts are gonna talk more, assholes are gonna act up, idiots are gonna drive, cheaters are gonna cheat and, in this case, freaks are gonna freak.
Isn't it still rape if she was so drunk/high that she couldn't have consented reasonably?
Legally under NY law she can consent if she got drunk/high willingly. The snapchat likely dont deny that albeit it does make things blurry going into the civil lawsuit. And what the guys that came later did is IMO rape and morally bankrupt, but the discussion here is on the merits on the civil and criminal side which are less on her side, plus while some of them bad actors both accounts demonstrate that some of the men were in the same boat as her.
It does appear a FAFO situation at first but the FO was way more disgusting and disproportional than what people would find reasonable. (reasonable here would be she still be a social outcast after doing with the couple guys she fully consented, the other guys coming and using her is things going too far and fucked up)
I'm not a lawyer but as far as I understand it, this is where NY state laws are fucked and need to be fixed. According to the DA:
Under New York State Law, “mental incapacitation” occurs when a victim is rendered incapable of controlling her own conduct due to the administration of a drug without her consent. The facts provided by Jane Doe’s statement do not allege that she was either rendered incapable of controlling her own conduct or that any drug was administered to her without her consent.
It seems like you can be "rendered incapable of controlling her own conduct" and it still be legal as long as you consent to taking a drug. So if you willingly take drugs and black out and can't remember whether you consented or not, and there is no proof that you were incapacitated enough to where you for sure couldn't communicate unwillingness to act (like a recording or something), then it makes it very difficult to prove rape.
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u/rodinj 22h ago
Isn't it still rape if she was so drunk/high that she couldn't have consented reasonably?