Under New York State law, voluntary intoxication does not by itself legally establish that a person was incapable of consenting to sex.

Posted by Behind the Bastards, Oct 3, 2026Checked Nov 2, 2026

Polygraph verdictTrue

Sources: 5 support1 context
Said: 1 time·
Confidence: 85%

Behind the BastardsOct 3, 2026

Multiple tier-1 outlets (Reuters, AP, BBC) report that under New York law a person who voluntarily becomes intoxicated is not automatically considered incapable of consenting to sex, and only those drugged without consent are treated as mentally incapacitated. The claim matches the passage's wording, and the NYSACDL dispute concerns whether this is a 'loophole', not whether the legal rule exists.

A guest makes this claim. Listeners heard it, so it counts against the post, and on the guest's own record.

What was said

… So when I heard that, I kinda did that Scooby do, like, ah, like, what? What the fuck do you mean? That seemed absurd to me. So I looked into this, and I only learned this from researching the situation, but there is a wrinkle in New York State law that critics have called the voluntary intoxication loophole, which is basically that, under New York law, if you voluntarily get even extremely drunk, the fact that you were too intoxicated to meaningfully consent does not by itself legally establish that you were incapable of consenting to sex, which to me is i mean, I maybe I'm a Pollyanna, but I did not know that. I was learning that for the first time from researching what happened at Cornell. …

Behind the Bastards · Oct 3, 2026· from the transcriptPost →

What we found

Supports. Reuters reports that New York law distinguishes victims who became intoxicated voluntarily from those given intoxicants without consent, and that only the latter can be considered 'mentally incapacitated' and unable to consent.[1]

Supports. The BBC states that under current New York law a person who voluntarily consumes drugs or alcohol is not automatically considered unable to consent to sex, and must prove they were so incapacitated they could not physically consent.[4]

Supports. The AP reports that under state law only victims who are unconscious or mentally incapacitated through drugging without consent fall within the protected categories, so prosecutors struggle when the intoxication was voluntary.[2][5]

Supports. The New York State Police consent guidance lists the circumstances that make a sexual offense based on lack of consent, including being drugged without consent and being physically helpless, and notes exceptions where the law deems a victim incapable of consent; it does not list voluntary intoxication as such a circumstance.[3]

Context. The New York State Association of Criminal Defense Lawyers disputes that the law contains a 'loophole', and some experts say the law has been misinterpreted, but neither source denies that voluntary intoxication does not by itself establish incapacity.[4][6]