Can the Cornell 7 lawsuit reform New York penal law?

Last month, the name "Jane Doe" took on a completely new meaning when the world first learned of the lawsuit filed against Cornell University, its Chi Phi fraternity, and seven student members of the fraternity, whom Doe claims drugged and gang-raped her in October 2024. When Doe filed her lawsuit two years after the claimed assault occurred, many were asking themselves why no criminal prosecution against the alleged perpetrators took place until then.

The complaint Doe filed also contained a screenshot of a Snapchat message in a group of over 50 members of the fraternity that was purportedly sent while the assault was taking place. One of the accused assaulters appeared to indicate that Doe was available essentially for "free" sexual intercourse, with some assaulters stating: "Like you can walk in and whip it out" and asking "Shop still open?"

Doe stated in her complaint that she had arrived on the evening of Oct. 19, 2024, to the Chi Phi fraternity house to meet a male friend, that she had consumed alcohol beforehand, and that she agreed to a sexual encounter involving two males she knew — until additional men entered the room and subjected her to forced sexual activity while she was under a state of severe impairment, and even pressured her to take the drug ketamine. In the following days, Doe discussed the incident with her roommates and peers; Doe's roommate even recounted that when Doe told her the story of what occurred the prior evening, she was laughing at times, with the roommate stating that it appeared Doe was "not really understanding the gravity of what she was saying." Further, Doe had texted several of the men involved in the alleged assault initially on a friendly basis after the encounter, stating "At the end of the day non(e) of the sexual stuff was illegal and honestly i really liked being w u and matt …" and added the phrase "Our body, our choice."

Things took a dramatic turn in the ensuing weeks, with Doe telling members of the fraternity via text: "Let's be clear that 90% of what happened that night was not consensual" and "The women will always get the short end of the stick. Y'all aren't my friends. Y'all are covering your a—es." One of the members seemed to acknowledge the issue of consent during the encounter, apparently texting Doe: "I just wanted to apologize for how things went down the other night …" and added that he and his fellow fraternity members felt poorly for being too intoxicated "to shut it down and kick people out before it got way out of hand."

By November, Doe had recorded several phone calls with the men allegedly involved and had reported the incident to campus police, unequivocally stating: "I can say with 100% confidence I was raped" and "I was completely and totally incapacitated."

Despite this, no criminal charges were filed by the state's attorney's office or internally at the university. While internal proceedings resulted in two expulsions and two temporary suspensions, two other men were found not responsible for sexual misconduct; Doe's complaint further alleges that some students were merely instructed to write an essay as punishment. It was confirmed that the Tompkins County District Attorney Matthew Van Houten declined to prosecute the alleged drug-facilitiated gang rape, stating that Jane Doe's initial sworn statement showed evidence that the incident was consensual, and that his office did not receive a copy of the fraternity's Snapchat messages at the time of his examination into the case.

Despite this, many experts linked the failure to prosecute to the "legal loophole" that exists in the law governing crimes of sexual assault not just in New York, but over a dozen other states. Specifically in New York, a person can be found guilty of rape if they engage in sexual contact with an individual who is "incapable of consent by reason of being mentally disabled or mentally incapacitated"; the loophole exists because, if drugs or alcohol are involved, the individual is considered "mentally incapacitated" only if they were unable to understand or control their actions due to the influence of a narcotic or intoxicating substance administered to them without their consent.

Van Houten argued that because Doe had willingly consumed alcohol before arriving at the fraternity house that evening, she could not have been deemed to have consumed substances without her consent and therefore, the elements of the law were not met.

Almost immediately after the suit was filed, Van Houten received swift backlash over his failure to move forward with prosecuting the seven men allegedly involved in the apparent assault, with many labeling the move as a lack of justice for Doe and continuation of esteemed educational institutions protecting alleged perpetrators instead of the victim. Van Houten pushed back, stating while the alleged actions of the so-called Cornell 7 might have been morally reprehensible, the intoxication loophole encoded in New York law prevented him from bringing charges. He told CNN: "The young men who engaged in that conduct were morally wrong. It was disgusting, and so she reported that to the police, and the police investigated it. That does not mean — if it's morally wrong or disgusting or offensive, all those things, it does not mean that the penal law was violated."

Tracing history of the New York Penal Law

The Jane Doe lawsuit has set many feelings into motion, including shock, outrage, and sadness, with protests taking place across Cornell's campus, an examination into fraternities and whether they have a place in colleges in general, and a look into how other universities are handling claims of sexual assault, such as University of Chicago and New York's own Fashion Institute of Technology (FIT).

Another effect from the lawsuit has been legal experts and attorneys taking a closer look at the "voluntary intoxication loophole" in New York state's penal law, which makes it more difficult to prosecute an alleged perpetrator of sexual assault if the victim has voluntarily consumed alcohol or drugs beforehand. The legal provision at issue in the Cornell 7 case is New York Penal law § 130.00(6), which was enacted in 1965, when New York lawmakers decided to adopt principles from the American Law Institute's 1962 Model Penal Code. Originally, an earlier draft of the 1962 Code contained a broader definition, in which intoxication by itself caused severe incapacity, with an initial exception for mutual drinking or drug use; in other words, lawmakers had, at first, considered criminalizing the act of having sexual intercourse with anyone who was extremely intoxicated, unless the individuals involved were drinking simultaneously together. Critics had pushed back on this original idea, and lawmakers narrowed the exception to cover cases only in which an individual was either drugged without their knowledge or coaxed into intoxication, such as someone spiking a drink.

The two main reasons critics pushed back on the original definition were that lawmakers worried it would be difficult for an individual to ascertain someone's exact level of intoxication and at what point their drinking passed the point of "severe impairment," leading to people facing potential criminal liability if they engaged in sexual intercourse without realizing the partner was severely impaired. The other reason for pushback was that lawmakers at the time reasoned that if someone becomes voluntarily intoxicated, then they should be held responsible for their own actions. In the lawmakers' view, removing the voluntary intoxication exception eliminated individual responsibility for their own conduct, and the rule was thus about someone taking "responsibility for his own conduct, including the choice to impair his judgment."

Concerning effects of the current legislation

The major concern stemming from this rationale is that the Penal Law itself has not changed since 1965, and in the 60 years since its enactment, society's views on issues of sexual assault, gender rights, and consent have altered dramatically. The troublesome rationale that if someone who voluntarily consumes substances or alcohol cannot hold a perpetrator of sexual assault accountable yields many worrying consequences.

Firstly, as the public has seen, eliminating the ability to hold perpetrators accountable just because a victim has voluntarily consumed alcohol leads to a lack of justice for countless victims of acts of sexual violence. Jane Doe resorted to a lawsuit as a means of pursuing justice when it became clear she was unable to obtain it through the state prosecuting the alleged Cornell 7 or through Cornell University's Title IX and Civil Rights Office, with filing a complaint in court remaining as her only option. Only last month — nearly two years after the alleged assault took place — did the tide turn. Gov. Kathy Hochul appointed New York Attorney General Letitia James as Special Prosecutor to oversee the criminal investigation, allowing her office to present evidence to a grand jury and pursue criminal charges independently of the District Attorney's office. While many have lauded Hochul and this new move — which will enable an avenue of pursuing potential criminal charges and launching a thorough investigation as to what occurred the evening of Oct. 19, 2024, who was at fault, and who should be held responsible — the loophole in New York law is what caused Van Houten to refrain from pursuing charges in the first place, resulting in a delay of over two years for Jane Doe to see a legitimate investigation take place.

Secondly, the voluntary intoxication loophole furthers the disturbing narrative that if a victim chooses to voluntarily consume alcohol or substances, their ability to seek their day in court after a sexual assault is eliminated. This rhetoric has been used to attempt to shift the blame from perpetrator to victim for years. We saw this dynamic play out in the 2012 Steubenville High School rape case, the 2015 sexual assault committed by Brock Turner, and the 2018 accusations against MMA fighter Conor McGregor; in all these cases, prosecutors and the public alike attempted to pinpoint fault to the female victim's decision to consume alcohol or substances prior to the encounter. Chanel Miller, the survivor in the Brock Turner case, came forward publicly years after in a "60 Minutes" interview and directly addressed critics and commentators who blamed her intoxication for the assault, stating: "Rape is not a punishment for getting drunk. We have this really sick mindset in our culture as if you deserve rape if you drink to excess. You deserve a hangover, a really bad hangover, but you don't deserve to have somebody insert their body parts inside of you." The notion that substance use strips a survivor of sexual assault or rape of the possibility of justice or public empathy only perpetuates the "perfect victim" narrative, a term coined in 1986 referring to the notion of how a crime victim should look, behave, and act. To fit the "perfect victim" archetype, a survivor of a violent sexual assault is expected to be Caucasian, feminine, conventionally attractive, and visibly innocent — reinforcing the notion that only women who embody an idealized purity are capable of being violated, and therefore worthy of justice.

Finally, enabling the New York penal law to proceed as it currently exists creates a great degree of confusion for victims, lawmakers, and attorneys attempting to seek guidance from a uniform set of laws regarding the parameters of justice for sexual assault. For example, while the New York Penal Law retains the voluntary intoxication barrier, New York's "Enough is Enough law" (NYS Education Law Article 129-B, which was enacted to combat sexual assault and rape on college campuses across the state) states that if silence, intoxication, or withdrawal of consent is present in a sexual encounter between two people, consent is automatically removed. The New York Penal Law also conflicts with the New York Civil Practice Law and Rules (CPLR § 213-c) / Adult Survivors Act (enacted in 2022) and the New York City Human Rights Law (NYCHRL) and NYC Gender-Motivated Violence Act (enacted in 2000), neither of which require evidence of "physical helplessness" or "forcible compulsion," as the New York Penal Law does. The voluntary intoxication loophole contrasts with much of the new legislation enacted in recent years that incorporates changing views on gender roles, consent, and how individuals process traumatizing events like sexual assault. Leaving the New York Penal Law as-is risks even further confusion and contradiction against recent legislation, making it that much harder for attorneys, judges, and lawmakers to enforce laws aimed at protecting victims, rather than perpetrators.

The path to lasting Penal Law reform

Ultimately, the Cornell 7 case has so far led to several constructive changes, including the Attorney General's criminal investigation, Cornell freezing fraternity social events for the time being, and requiring plans to involve New York State Police in all sexual assault investigations on campus. However, the most promising potential change of all is the prospective reform to the law itself. Legislation that makes it illegal to engage in sexual intercourse with someone too intoxicated to consent passed the state Senate this year, but did not pass the Assembly. The effort to change the existing Penal Law was already underway for years before the Cornell 7 case came to light — in fact advocates, survivors, and lawmakers had been pushing to remove the voluntary intoxication defense for nearly a decade — yet the shocking Cornell 7 case may be the breakthrough needed to push the change all the way through. After the civil suit was filed, Assembly Speaker Carl Heastie announced a group of Assembly lawmakers who are now working together to draft recommendations and fixes ahead of the latest legislative session to force removal of the exception. That next session is set to convene in January 2027, at which time lawmakers will have the opportunity to make further progress in changing this law for good.

Over the coming weeks and months, as Jane Doe's civil suit, the Attorney General's investigation, and new facts continue to dominate headlines, the legal community will be watching closely for long-overdue reforms to New York's Penal Law. If lawmakers finally act to close this loophole, it may ensure that hopefully no future survivor has to walk the same painful path as the current Jane Doe.