A backlash over the handling of a US woman’s sexual assault complaint against Cornell University fraternity members has highlighted what experts believe are issues with the current laws in many states regarding sexual assault and drinking.
The woman, known as Jane Doe in legal documents, last month filed a lawsuit alleging she was drugged and raped by several men in 2024 at the university in the state of New York.
Doe said she had been drinking earlier in the evening of the alleged incident and then went to a fraternity house, where several men pressured her to snort the drug ketamine and plied her with alcohol before advertising a “free” sexual encounter with her in a group message.
She said she was intoxicated during the alleged incident and could not provide consent.
US media has been widely reporting it as the “voluntary intoxication loophole”.
New York Governor Kathy Hochul last week said: “Voluntary intoxication is not a license for sexual assault or gang rape” and that she would work with the state legislature to close the “loophole”.
But some experts say the law has been misinterpreted and that it does not stop people who choose to consume alcohol or drugs from reporting sexual assault. It does, however, require them to prove they were so incapacitated they could not physically consent – a higher bar than being intoxicated.
The distinction reflects an ongoing debate in the US about what counts as consent when someone has been drinking.
Dan Schorr, a former sex crimes prosecutor, told the BBC that New York law still protects victims of assaults who have chosen to drink or take drugs.
“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,” said Schorr, who also helps universities review sexual assault cases.
“I prosecuted many people who sexually assaulted someone who was voluntarily intoxicated,” he said, adding: “I got convictions. They went to prison.”
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What counts as incapacitated?
Some believe issue with the current law is that the bar is set too high with regards to what counts as being too intoxicated to give consent.
At least 19 states, including New York, have a higher bar for the level of intoxication required to deem someone incapacitated and unable to consent.
The New York law includes a provision that someone cannot consent to sex if they are “unconscious or for any other reason physically unable to communicate an unwillingness to an act”.
This applies to people who are too incapacitated from drinking to consent, Schorr said.
But another legal expert the BBC spoke to says that can be difficult to prove.
Some prosecutors “may not bring charges or defendants may be acquitted because someone ‘gave consent’ while intoxicated, but not completely incapacitated”, according to Mitchell Epner, a former prosecutor who has handled sex trafficking cases.
He said that in other states that have lower legal bars for incapacitation, someone who is “impaired” or “significantly impaired” cannot consent, and that being too drunk to drive a car could be considered as being at this level.
College campuses have different standards for consent than criminal law, including Cornell, which uses a standard of affirmative consent, defined as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity”. Cornell says silence or lack of resistance does not constitute consent.
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A push for change
Epner supports a proposed change to New York’s law to widen the scope of when someone is too intoxicated to consent. The New York Senate has passed a bill multiple times, but the state Assembly failed to bring it up for a vote.
That bill states that people cannot give consent if they are under the influence of substances that have rendered them “temporarily incapable of appraising or controlling” their conduct, and “such conduct was known or reasonably should have been known” to the other person.
Pennsylvania has also made efforts to try and change the law to make it easier for victims who were intoxicated to prove they were assaulted.
“If somebody’s too drunk to drive, they’re too drunk to – fill in your verb of choice,” Epner said.
Representative Lea Webb, whose district includes Cornell University, told the BBC News Channel she and her fellow lawmakers were working to push through legislation on the issue, which has gone through several amendments.
New York’s current laws, she said, “puts the onus of proof on the victim”.
Schorr and criminal defence attorneys, meanwhile, criticised the proposed changes to New York’s sexual assault laws.
New York’s State Association of Criminal Defense Lawyers said in a statement to the BBC New York’s current laws were sufficient, and that “people have been convicted of rape in cases involving voluntarily intoxicated victims”.
The group said using language that a victim was “incapable of appraising or controlling their conduct” was “simply too vague to be fairly enforced”, adding that the legislation does not give clear details on what constitutes someone being too intoxicated to engage in sexual conduct.
Schorr said it was not easy to answer this question of what exact point someone is too intoxicated to consent.
He added: “How should the law address that? It is very challenging to find a clear standard that will be evenly applied.”
“It’s a conversation we should have as a society, as a state”.
