Drinking and Consent: Cornell Rape Allegations and Law Loopholes
By Madeline Halpert
A recent backlash over the handling of a sexual assault complaint against Cornell University fraternity members has brought attention to perceived issues in state laws regarding sexual assault and drinking.
Jane Doe, identified as such in legal documents, filed a lawsuit last month claiming she was drugged and raped by several men at Cornell University in New York State in 2024. She alleged that the men pressured her to snort ketamine and consumed alcohol with her before advertising a "free" sexual encounter in a group message.
Under current New York law, a person who voluntarily consumes drugs or alcohol is not automatically considered unable to consent to sex. This loophole, often referred to as the "voluntary intoxication exception," has gained widespread media attention.
New York Governor Kathy Hochul recently stated, "Voluntary intoxication is not a license for sexual assault or gang rape." She vowed to work with the state legislature to close this perceived gap in the law.
However, some legal experts argue that the law has been misinterpreted. They claim it does not prevent individuals who choose to drink or use drugs from reporting sexual assault; instead, it requires them to prove they were so incapacitated by their consumption that they could not physically consent—a higher standard than simple intoxication.
This debate highlights a broader challenge in defining consent when alcohol is involved.
Dan Schorr, a former sex crimes prosecutor, emphasized to the BBC that New York law still protects victims who have chosen to drink or use drugs. He stated:
"If a person cannot express consent or lack of consent due to the consumption of alcohol or drugs, any sexual activity with them is always non-consensual, whether the ingestion of alcohol or drugs was voluntary or involuntary."
Schorr added that he successfully prosecuted cases where victims were voluntarily intoxicated.
What Counts as Incapacitated?
The issue at hand lies in determining the level of intoxication that renders someone unable to consent. At least 19 states, including New York, have set a higher bar for the required level of intoxication to be considered incapacitated and thus, unable to give consent.
New York's law includes a provision stating that one cannot consent to sex if they are "unconscious or for any other reason physically unable to communicate an unwillingness to an act." Schorr explains this applies to individuals who are too intoxicated to consent.
However, another legal expert, Mitchell Epner, cautioned that proving incapacitation can be challenging. He noted that some prosecutors might not bring charges or defendants could be acquitted because a victim "gave consent" while intoxicated but not completely incapacitated.