Manhattan D.A. Suggests He Nudged The Governor To Fix A Loophole In New York Rape Law. It’s A Bit More Complicated.

Last week, New York Governor Andrew Cuomo said he wanted to close a loophole in the state’s rape law that makes it difficult to bring charges in cases where victims were too drunk to express a lack of consent.

Manhattan District Attorney Cyrus Vance says he drew Cuomo’s attention to this loophole in an April 2018 letter calling for changes to sex crimes statutes, sent to three members of Cuomo’s staff. 

 “Thanks @NYGovCuomo for adopting our call to close the ‘rape intoxication loophole’ and align NY’s definition of consent with half the nation. This will enable prosecutors to bring more cases and secure justice for more survivors,” the DA’s account tweeted. 

But Cuomo’s office insists it never received the letter, and a public records request to the governor’s office seeking “records or portions of records pertaining to” the letter turned up nothing.

When Vance’s office didn’t hear back from Cuomo, the staff took the message elsewhere. “We made multiple presentations to DAs statewide on DAASNY’s [District Attorneys Association of the State of New York] Sex Crimes and Family Violence Legislative Committee, a presentation to the Downstate Coalition for Crime Victims (which includes the major New York victims’ advocacy groups), and had a phone conference and subsequent meeting with Senator Biaggi’s staff,” his office said in an emailed statement.

Vance made the letter public in August, sharing it with NBC’s local affiliate. He then spoke to the press, saying his office has declined to take cases where the victims were raped while drunk. His critics say his phrasing sent a damaging message to survivors of rape.

The loophole stems from the definition of second-degree rape in New York penal law: engaging in sexual intercourse with someone who is “incapable of consent by reason of being mentally incapacitated.”

“Under current law,” Vance wrote in the 2018 letter, “a voluntarily intoxicated individual is not considered ‘mentally incapacitated,’ even if he or she were unable to control his or her conduct due to intoxication.”

“Therefore, prosecutors cannot bring sex crime charges in cases where the victim became voluntarily intoxicated and was unable to consent,” he wrote.

Vance’s critics say his letter overstates the limits on when prosecutors can bring charges, and contributes to a climate that already discourages survivors of sexual assault from reporting.

“For the Manhattan district attorney to proactively step forward and say, ‘If you’ve had too much to drink, there’s nothing I can do for you,’ you are dissuading people from reporting,” said Marissa Hoechstetter, who launched an effort to reform the DA’s office’s sex crimes unit and unseat Vance in 2021 after Vance’s office gave the man who sexually abused her and scores of other women a plea deal. “You are actively discouraging people from reporting, and you’re showing a lack of understanding of the law and a lack of creativity to work within the law.”

“That does not at all align with the public image Vance is trying to put out there of himself as a progressive prosecutor and supporter of women by throwing money at rape kits,” she added.

Hoechstetter is one of at least 19 patients who came forward to report gynecologist Robert A. Hadden’s sexual abuse. Vance’s office gave Hadden a plea deal, which was not well-received by some of Hadden’s victims. Hadden gave up his medical license and registered as a Level 1 sex offender but received no jail time or probation. 

To Hoechstetter, the claims Vance made in his letter are “just more evidence of a pattern of the Manhattan district attorney’s lack of courage and willpower to step forward and protect victims.”

“Survivors don’t report sexual assault for many reasons,” said New York Assemblymember Dan Quart, one of Vance’s challengers in the 2021 DA race. “One of them is the fear that law enforcement won’t believe them or won’t take their case seriously, and Vance’s actions here confirm that fear.”

When contacted by The Appeal for this article, Vance’s office clarified that it does bring rape charges in such cases, but that the law makes it hard to prosecute some of them—specifically, when the victim is too intoxicated to consent or express lack of consent but didn’t fully lose consciousness.

“Of course you picked up on the fact that this is just inartfully put,” Chief Assistant DA Karen Friedman Agnifilo said. “Of course you can bring charges for someone who is voluntarily intoxicated, but you still have to prove there was a lack of consent.”

Friedman Agnifilo said Vance was trying to highlight cases in which victims are too intoxicated to consent, but “not so intoxicated in the sense that they are physically helpless, passed out cold, because we could bring charges in that case, but the law requires that they be completely unconscious.”

“It is only when the lack of consent can’t be established any other way, when the lack of consent is established only because the person was too intoxicated to consent, that is where we are saying there is a gap in the law,” she said.

Vance has drawn criticism over the years for letting rich and powerful men accused of sexual assault, like Harvey Weinstein and Dominique Strauss-Kahn, off the hook. The DA has rebuffed those criticisms, saying his office does prosecute wealthy defendants for rape.

His critics agree the loophole in the law needs to be closed. But they believe his handling of the issue—including the puzzling episode with the missing letter—says something about his office’s approach to rape. 

“I think the letter … is a window to how he’s operated in the past 10 years,” Quart, Vance’s challenger, said. “How many people have come into his office in search of justice and been turned away?”

In 2015, after a woman accused prominent attorney Sanford Rubenstein of sexually assaulting her repeatedly while she was fading in and out of consciousness at his penthouse, Vance determined that there was not enough evidence to prove beyond a reasonable doubt that she had been raped. Rubenstein denied the allegations and said the sex was consensual. Yet the woman’s attorneys said she never consented to sex, had bruises on her arms, and had bled vaginally.

“Given the available evidence, the degree of the complainant’s recollection of what occurred at the suspect’s apartment, and the results of the toxicological testing, neither the provable facts nor the applicable law support a prosecution in this matter,” a spokesperson for Vance, Joan Vollero, said at the time.

Part of what prosecutors took into consideration when evaluating the “applicable law” in the case against Rubenstein was whether the woman had taken any substance without her knowledge that had incapacitated her, or if she was incapacitated solely by the alcohol she had voluntarily drank, which would rule out second-degree charges. 

But the “voluntary intoxication” loophole does not prevent prosecutors from bringing charges of rape in the first degree—defined as engaging in sexual intercourse with another person “by forcible compulsion” or “who is incapable of consent by reason of being physically helpless.”

Since the woman claimed she had never consented to sex, but had instead woken up to find Rubenstein on top of her, it would be possible to charge rape in the first degree—she said she was unconscious or asleep when the intercourse began, meeting the definition of “physically helpless.” The woman also alleged that Rubenstein had held her arms down, which could meet the definition of “forcible compulsion” under first-degree rape.

“Physical helplessness can even be if somebody is sleeping. If someone is passed out, one could make the argument that one is physically helpless. So that’s what I’m saying, they could still bring these cases,” said Cheryl Bader, clinical associate professor of law at Fordham University, and former assistant U.S. attorney for the District of New Jersey.

“It’s just a more difficult case to win with juries … but prosecutors shouldn’t be looking at cases based on just whether they can win a case in front of the jury,” she added.

“It’s important that they have candid, difficult conversations with rape victims about what a trial will look like and where the hurdles will be at trial,” Bader said. “But I think they can do that without sending the message to the victim that, ‘well, you went out and got drunk so you caused this problem.’”

Vance’s office provided The Appeal with a screenshot of an April 2, 2018, email from Vance’s executive assistant, Marlene Turner, to three members of the governor’s staff: Adam Silverman, assistant counsel, Leigh Frany, executive assistant, and Alphonso David, who was then chief counsel.

The subject line of the email said “Letter from DA Vance to Gov. Cuomo re: NY’s Sex Crimes Statutes” and the body of the email said only “Attached please find a letter from NY County District Attorney Vance to Governor Cuomo regarding reform of New York’s sex crimes statutes.” The letter was attached.

Quart questioned why the DA would send the letter in this way if the document was calling for change on an important issue.

“The whole idea that the district attorney sent a personal letter seeking legislative changes only to the governor’s counsel, without copying legislative leaders, or the District Attorneys Association of New York, which he was formerly the head of, is very suspicious,” he told The Appeal. 

Caitlin Girouard, a spokesperson for Cuomo, initially directed The Appeal to past statements saying Cuomo’s office never received the letter, but did not respond to three follow-up emails about the email supplied by Vance’s office.

A records officer for the New York State Executive Chamber said a search of available records failed to locate any responses to the request.

Asked why the governor’s office would say it never received the letter, Friedman Agnifilo said, “Maybe they’re busy. Maybe there’s turnover. I can’t speculate, but I’m sure it wasn’t malicious.”

Vance and Cuomo haven’t had the best working relationship in recent years. In March 2018, Cuomo ordered New York Attorney General Eric Schneiderman to review Vance’s handling of the 2015 case against Harvey Weinstein. And in May 2018, after several ex-girlfriends accused Schneiderman of domestic violence and he resigned, Cuomo took the investigation out of Vance’s hands and assigned it to an outside prosecutor, a move that incensed Vance.

Regardless of whether Cuomo’s office ever received Vance’s letter, the issue caught lawmakers’ attention. On Aug. 30, state Senator Alessandra Biaggi introduced a bill that would amend the definition of “mentally incapacitated” in Article 130 of New York penal law to include people who are voluntarily intoxicated.