New York's bills on intoxication and consent

Today, New York defines “mentally incapacitated” as being under the influence of a substance “administered to him without his consent,” and “physically helpless” as being unconscious or “physically unable to communicate unwillingness” (Penal Law 130.00).

S54A, sponsored by Sen. Nathalia Fernandez, would add a new way to show lack of consent for certain charges, including sexual misconduct and some third-degree rape charges. It would cover a victim clearly under the influence of a drug, intoxicant or other substance to a degree that left them unable to control their conduct and unable to clearly express lack of consent, when that condition “was known or reasonably should have been known to a person in the actor's situation.” It passed the Senate 58-0 on April 28, 2026, and is in the Assembly Codes Committee (S54A).

S10632, also sponsored by Fernandez, “prohibits the use of intoxication of the victim as a defense in sex crimes.” It would add another circumstance that shows lack of consent, covering a victim under the influence of a substance “to a degree which rendered the victim temporarily incapable of appraising or controlling such person's conduct,” when that condition was known or reasonably should have been known to a person in the actor's situation. It passed the Senate 60-0 on June 4, 2026. Its Assembly version, A101, sponsored by Asm. Jeffrey Dinowitz, is in the Assembly Codes Committee (S10632; A101; A101 on the Assembly's site).

S866, sponsored by Sen. Jamaal Bailey, would redefine “physically helpless” to cover a person who is physically unable to communicate “affirmative consent,” which the bill defines as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” It passed the Senate 59-0 on Feb. 5, 2026, and is in the Assembly Codes Committee. The Senate also passed it 61-0 on March 27, 2025, but it died in the Assembly (S866).

In the Cornell Chi Phi case, Tompkins County District Attorney Matthew Van Houten said the woman's 2024 sworn statement didn't meet New York's legal definition of lack of consent, which includes these definitions, so no charges could be filed (DA's statement). No one has been charged in that case, and the men named in her civil lawsuit deny wrongdoing (ABC News). Gov. Hochul said, “I support closing this loophole and will work with the New York State Legislature to accomplish this” (transcript). Assembly Speaker Carl Heastie announced a work group of Assembly members to examine the state's laws (WWNY).