I'm going to copy and paste someone else's comment because the law is actually pretty long, but you are wrong:
New York State Penal Law, § 130.05 specifies that "lack of consent" is a condition that exists in one of the four situations: "Forcible compulsion" "Incapacity to consent" If the act is a form of forcible touching, there is a lack of consent if the victim does not does not "expressly or impliedly acquiesce to the actor's conduct" If the act is a form of rape, there is a lack of consent if the victim "clearly expressed that he or she did not consent to engage in such act, and a reasonable person would understand such words and acts as an expression of lack of consent." "Forcible compulsion" is defined elsewhere in the Penal Law, but the definition is pretty straightforward. Being "incapable of consent" is a little less clear, and is defined as a condition where any of the following apply to the victim (as specified in subsection 3 of NYS Penal Law § 130.05): The individual is less than seventeen years old. The individual is "mentally disabled". The individual is "mentally incapacitated". The individual is "physically helpless". The individual is incarcerated. The individual is committed to some kind of medical facility (e.g. a hospital). In New York, you are considered "mentally disabled" if you have some sort of mental or neural condition which prevents you from realistically judging the consequences of your actions. You would be considered "mentally incapacitated" if you were under the influence of an intoxicating substance only if you did not serve yourself the substance, although you might be "physically helpless" if you drank enough. In other words, according to the laws of New York, if you got yourself drunk, but weren't so drunk that you became helpless, you are capable of giving consent, although if someone spikes your drink or puts a date rape drug or something of that nature in it, it is always considered rape. The actual point at which you would become helpless is something a judge would analyze if you filed a complaint and the local attorney decided they had enough evidence to prosecute. Edit: Now that the NYS legislature's law database is back up (it has issues from time to time), the definitions of some of the other terms-- "Mentally disabled" means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent. "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. "Forcible compulsion" means to compel by either: a. use of physical force; or b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.