The Loophole That Likely Doomed the Cornell Rape Case Before It Even Started

Por Inae Oh — Mother Jones Magazine

“She never says that she was drugged without her knowledge. She admits to taking drugs and alcohol voluntarily and with knowledge. She does not allege that she was forced to engage in any acts. She does not say that she was physically helpless or unconscious or incapacitated at any point during the time at the fraternity house.”

Tompkins County District Attorney Matthew Van Houten didn’t directly refer to New York’s voluntary intoxication loophole in his statement confirming this week that his office is taking a fresh look at rape allegations at Cornell after declining to do so in 2024. But the controversial law—which many say requires an extraordinarily high bar for victims of rape who willingly became intoxicated to prove that they were unable to consent to sex—seems to animate nearly every turn of his remarks. Specifically, that the victim in the incident, identified as Jane Doe, “admits to taking drugs and alcohol voluntarily and with knowledge,” and that she does “not say that she was physically helpless.” Take a look, and much of the same language appears in the state’s laws on rape.

If that strikes you as victim-blaming, you’re not alone; advocates of sexual assault victims and a majority of New York’s State Assembly members have long condemned the law for exactly the same. Now, amid national outrage over the allegations, questions have emerged about whether the statutes may have deterred prosecutors from pursuing the case.

I talked to Jane Manning, director of Women’s Equal Justice, about the laws’ likely role in tanking the Cornell case back in 2024, the history behind the statutes and the movement to reform them—and the person standing in the way of change.

Let’s give a brief overview of the rape laws surrounding the Cornell allegations.

There are several different rape statutes at play here. First-degree rape requires that the victim either be the victim of forcible compulsion, meaning that extreme violence took place, or that the victim be “physically helpless.” Rape in the second degree applies when a victim is involuntarily drugged, such as a drink being spiked. Rape in the third degree applies where none of the above statutes apply, but the victim gives an express verbal declaration of non-consent. Those laws also include other provisions, including age-related provisions. But these are the statutes that mainly apply in a situation like the Cornell case where a person is intoxicated.

How does the law determine “physical helplessness?“

Under New York State law, being physically helpless is defined as being unconscious or physically unable to communicate a lack of consent. That word “physically unable” is really important because what that means is that it’s not enough if the person is severely mentally disoriented or confused. They have to be physically unable to speak, and case law basically says that means unconscious. That language excludes somebody who is severely intoxicated to the point where they are falling down, or when they are so disoriented that they don’t know where they are, or when their speech is slurred. None of those things is enough to deem a person incapable of consent if they are voluntarily intoxicated.

The suggestion that an accuser who became voluntarily intoxicated and engaged in sex cannot be raped feels extremely antiquated. But where does it come from? What’s the history behind this exception? 

Our rape statutes were written decades ago, at a time when women were gravely underrepresented in the legislature, and when we understood far less about rape than we understand now. Most survivors of rape were in the shadows because of a culture that silenced them, and so many of our statutes do not reflect a modern understanding or a survivor-centered understanding of the realities of rape and sexual assault. The [voluntary intoxication loophole] is a good example.

Can you give me an example of what other rape laws were like decades ago?

In the 1950s, New York law was something out of the dark ages. There were special corroboration requirements that applied only to rape and not to any other crime. It had an earnest resistance requirement, saying that if you didn’t fight back, it wasn’t rape. That no matter how the person threatened you or frightened you or overpowered you, if you didn’t fight back, it wasn’t rape. Also, marital rape was legal back then. New York didn’t have a rape shield law in the 1950s, either. So if a rape victim did, by some miracle, make it onto the witness stand, it was perfectly legal for the cross-examination to start with the question, “Were you a virgin before this happened?” and to spend hours cross-examining the victim about her unrelated sexual history. This routinely happened.

How did these laws change?

All those laws that I just mentioned to you have been reformed. But they did not reform themselves. They were reformed because of survivors and feminists who banded together and demanded changes in the law. Over the years, including recently, others have been reformed. For example, in the year 2000, New York added a no-means-no statute to the third-degree rape statute, which means that if a person explicitly expresses non-consent and the perpetrator proceeds anyway, that’s considered third-degree rape in New York. Another 21st-century reform came in 2006 when New York eliminated the statute of limitations on first-degree rape and other high-level sex crimes. In 2010, we finally made strangulation a crime.

Bit by bit, survivors and feminists have fought for reform of New York State’s laws from a place of extreme bias against survivors to a place where, little by little, we are chipping away at that bias. However, the work is not done, and the voluntary intoxication exclusion is an example of a very victim-blaming, biased law in New York that advocates and survivors have been calling out for years to reform, and our legislature has not yet done it.

What are some of the arguments by those who oppose reforming the voluntary intoxication exclusion?

There are the arguments that are made explicitly, and then there’s the belief system that is subtext to these arguments. There are small numbers of people who believe that nobody should go to jail for anything, those who oppose any effort to strengthen our criminal law, even for rape survivors. I think that viewpoint fails to take into account the perspectives of women and other groups that are disproportionately targeted for violent crime. For me, that philosophy fails to be intersectional because it fails to take into account the reality of women who are targeted and preyed on deliberately by those who would deprive us of our rights.

That’s the subtext. Now, what are the explicit arguments? It’s a good question because there are valid concerns that we want to make sure we address when we redraft a law. One concern is that we don’t want to criminalize drunk sex—and my answer to that is that’s absolutely right. We do not want to do that. The bill we are supporting does not criminalize drunk sex and has two important requirements. The first is that the victim is incapable of appraising or controlling their own conduct. Not just that they fail, not just that they didn’t appraise or control their own conduct, but that they’re incapable of controlling their conduct. That’s how we define the victim’s condition. The second requirement applies to how we define the perpetrator’s state of mind and that the victim’s condition was known or reasonably should have been known to a person in the actor’s situation. The reason that language is there is that we want to make sure that a person is only held criminally responsible when it was obvious that they were victimizing someone. Because there are situations when two people are very far gone and have sex, but nobody’s preying on someone; it’s just drunk sex that somebody may regret the next day. That is very much not what we are looking to criminalize. We are looking to criminalize predation, not a mistake.

One more important thing to keep in mind about this is that the prosecution will have the burden of proof on both of those elements. And if the prosecution can’t prove either element beyond a reasonable doubt, they can’t prove their case. So, for instance, if you have a scenario where two people have blurry memories, that’s a grey area; that’s not proof beyond a reasonable doubt.

Where does the bill stand now?

For two years running, this bill has passed unanimously in New York’s Senate. And both times, it has had a supermajority of support in the Assembly. But the bill is being blocked by one man, and that man is Assembly Speaker Carl Heastie. [On Wednesday, Heastie announced that the Assembly is forming a “working group” to review the law.] He has not allowed this bill to get to the floor for a vote. He didn’t allow it in 2025. He didn’t allow it in 2026, when we had 60 percent of the State Assembly signed on as co-sponsors of the bill. He still wouldn’t allow it to go to a vote. He has not provided us with an explanation. He has not met with advocates or survivors. He has not provided any public statement about why he will not allow a vote on this bill that a supermajority of his own house supports.

So, Gov. Kathy Hochul really has the opportunity to lead here by calling on Speaker Heastie to pass this bill or by sponsoring it herself by including it in her budget bill.

The allegations in the civil complaint in Cornell have prompted widespread outrage. Can you describe your reaction upon hearing about the case?

This young woman was failed by many people. She was clearly failed by people who took advantage of her state of incapacitation. She clearly was failed by the district attorney, and she was failed by the law of New York State. This district attorney saw an allegation of a gang rape and didn’t even bother to interview the victim. He looked at a summary of the allegations and came to the conclusion that there was no provable crime, and didn’t bother to conduct an investigation. That is outrageous. The young woman who survived this incident was interviewed by campus security officers who are not trained in trauma-informed interviewing and are not trained in investigating complex and serious sex crime cases. She was let down by the person responsible for enforcing the law, and she was let down by the law itself because even if the district attorney had done a good job, we don’t know if he would have found a prosecutable crime because of the voluntary intoxication exclusion.

That’s actually my next question. Do you see these laws as having had a role in the DA’s decision not to prosecute the Cornell case?

They certainly played a role in his decision, but they do not let him off the hook. What I see far too often in my work as an advocate for rape survivors is district attorneys who don’t place a high priority on rape. They just don’t take the trouble to do a thorough investigation because they don’t see the need to treat this as a serious crime. That’s the truth.

This interview has been lightly edited for length and clarity.

Fonte: Mother Jones Magazine