Buffalo, NY (WBEN) Lawmakers in Albany are putting together a bill to take out a state law saying a "voluntary intoxication exclusion" rules an intoxicated person is still capable of giving consent if they knowingly take drugs or alcohol. One lawyer says that part of the law is not workable.
Assemblyman Patrick Burke says the law says that the person who didn't receive consent, or should have known that the person giving consent was too impaired to do so." if you illustrate the picture, if someone is fall down drunk or blackout drunken is observably in that state, and they say, yes, I'm going to do this. The sober person, being like, okay, great, that would that would be obviously inappropriate and a deep violation of the other person's rights and consent and that would create that structure that exists in I believe 21 other states but doesn't exist in New York," says Burke..
Burke says cases end up being very murky. "We want to make sure justice is done on both ends, and I think that this is probably the way we're going to to make sure people who fall victim to this type of situation that they are given a fair chance," says Burke.
Attorney Tom Eoannou believes that part of the law should be repealed. "It hasn't been workable, and quite frankly, in my experience of over 40 some years, it really doesn't work. It should be repealed. It should be changed. But as a defendant, if you're saying the woman was too intoxicated, or so intoxicated she must have consented. Is a tough argument to make, anyways," says Eoannou.
In fact, Eoannou calls it a one foot in the grave defense. "You're saying yes, I did it. I had sex with her, but the fact that she was intoxicated somehow resolves me or relieves me from being convicted of sexual assault. I just don't think, especially in this day and age, that it that it works. So I think that the manner and means in which the victim became intoxicated should not matter.," explains Eoannou.
Eoannou says it doesn't mean merely drinking, then having sex can become a case of sex without consent. "It's drinking to the point where the perpetrator should know that this person was incapable of consenting by reason of intoxication, not mattering where it came from, whether she drank beforehand or he gave it to them. Either way, you would be found guilty," notes Eoannou.
He says the change in the law is it's going to be irrelevant how a person became intoxicated. "Whether or not someone gave her a bottle of tequila or she drank a bottle of tequila before she got there now becomes irrelevant. It's at the point in time that you have sex with a reasonable person, no, she's incapable of consenting by reason of intoxication. So the manner and means of the intoxication becomes irrelevant under the repealed law. In other words, you can't hide behind the fact that she drank it before she got there, as many defendants have," says Eoannou.
Eoannou says that's been a "one foot in the grave" defense
Eoannou says that's been a "one foot in the grave" defense
