NEW YORK – An alleged gang rape at Cornell University has reignited a fight over a New York law that can make it harder to prosecute sexual assault when an intoxicated victim willingly consumed alcohol or drugs.
Under current state law, there is a key distinction between someone who becomes intoxicated voluntarily and someone who is drugged or intoxicated without their knowledge. Only the latter can be considered “mentally incapacitated” and therefore unable to consent under that provision.
Critics say the distinction creates a gap in the law when a person becomes too intoxicated to consent after choosing to drink or take drugs.
The issue returned to the spotlight after a woman sued seven members of Cornell’s Chi Phi fraternity, alleging that fraternity members gave her alcohol and ketamine before sexually assaulting her after she became incapacitated in 2024.
The allegations have not been proven in court.
Tompkins County District Attorney Matthew Van Houten said prosecutors initially declined to bring charges partly because of the limits of New York law.
According to Van Houten, the woman, then a 20-year-old student, did not initially allege that she had been involuntarily intoxicated, physically forced or unconscious, or that she had clearly expressed a lack of consent.
Multiple prosecutors and investigators therefore concluded that the allegations in her original statement did not constitute a crime under existing state law, he said.
Van Houten has since reopened the investigation and said the case, including testimony from the woman, will be presented to a grand jury for possible indictment.
Her lawyer, Thomas Giuffra, has disputed the prosecutor’s explanation, saying her 2024 statement was not materially different from the allegations in the lawsuit and arguing that authorities should have investigated further.
The controversy has given fresh momentum to legislation that would allow rape charges when an accused person reasonably should have known that someone was too intoxicated to consent.
State Assemblyman Jeffrey Dinowitz and State Senator Nathalia Fernandez have pushed the proposal for years. It has passed the New York Senate more than once but has yet to receive a vote on the Assembly floor.
“There shouldn’t be any difference in terms of the survivors of sexual assault between the people who are voluntarily intoxicated and who are involuntarily intoxicated,” Dinowitz told Reuters.
New York is among 19 U.S. states that recognize mental incapacitation only when intoxication is involuntary, according to Elizabeth Jeglic, a professor at John Jay College of Criminal Justice.
Cornell said it investigated the allegations and disciplined the accused students, with penalties ranging from suspension to expulsion.
The national Chi Phi fraternity said the Cornell chapter voted to expel the accused members three days after the police report was filed in 2024, with the national organization later expelling them as well.
New York Governor Kathy Hochul said Cornell has also agreed to hire an outside law firm to conduct a fresh investigation.