The Brian Lehrer Show The Allegations Against Rep. Eric Swalwell
Apr 14, 2026
Jane Manning, former sex crimes prosecutor and director of Women’s Equal Justice, explains New York’s voluntary intoxication exclusion and why it makes proving incapacitation so difficult. She discusses differences between involuntary drugging and voluntary intoxication, the legal hurdles for proving helplessness, prospects for indictment, and proposed legislative reforms to help prosecutors and survivors.
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Voluntary Intoxication Exclusion Blocks Many Rape Cases
- New York's voluntary intoxication exclusion makes it almost impossible to convict when a victim was voluntarily drunk unless they were physically helpless.
- Case law narrows "helpless" to unconscious or unable to speak, excluding stumbling or incoherent victims who were taken advantage of.
Which Rape Charges Apply In Intoxication Cases
- Prosecutors will evaluate both rape in the third degree ("no means no") and first degree (physical helplessness) in intoxication cases.
- A remembered "I said no" can open third-degree charges; absent that, first-degree's helplessness standard is hard to meet.
Require Defendant Knowledge To Protect Against Overreach
- Reform bills require prosecutors to prove the defendant knew or should have known the victim was incapacitated to avoid criminalizing regretted consensual sex.
- The redrafted bill adds an objective-person-in-the-defendant's-situation test and considers whether the defendant was also intoxicated.