The renewed investigation into an alleged 2024 gang rape at a Cornell University fraternity has fueled a broader conversation about consent and related laws, including in New York.
A former Cornell University student, identified only as Jane Doe in court documents, told campus police in November 2024 that she had been sexually assaulted and then discussed it with the university’s internal investigators as part of Cornell’s disciplinary process.
The preliminary investigation ended without any criminal charges being filed (although some defendants were suspended, some were fired, and others were required to write papers).
But the case drew renewed attention last month when the woman filed a lawsuit against seven fraternity brothers, the university, the Chi Phi fraternity and others, alleging that she drugged and drank alcohol and then suffered sexual acts from a group of men while she was partially or completely incapacitated. The lawsuit alleges that one of the men sent a social media message to other fraternity members alerting them to what was happening and inviting people to participate.
Lawyers for the two men she is suing deny they were involved in the sexual assault. One said his client had not touched the woman. The AP’s attempts to contact others or their representatives were unsuccessful.
Tompkins County District Attorney Matthew Van Houten reopened the investigation after the lawsuit. He has since faced criticism that he abandoned the initial investigation too quickly.
On Thursday, New York Gov. Kathy Houcher removed Van Houten from the case and assigned the attorney general who will oversee the investigation and present evidence to a grand jury if necessary, Hocher said.
Van Houten did not immediately respond to a message seeking comment Thursday.
What is the “Voluntary Poison Exclusion” vulnerability?
Experts say legal “loopholes” not just in New York but in nearly two dozen other states exist when it comes to rape laws and consent: If a victim willingly takes drugs or alcohol and is then sexually assaulted, it’s nearly impossible for them to seek justice.
As New York State law currently states, a person is incapable of giving consent if he is “mentally incapacitated,” which is defined as “a person who is temporarily unable to evaluate or control his conduct as a result of being under the influence of an intoxicating or intoxicating substance without his consent, or any other act done to him without his consent.”
The loophole is that in order to avoid consent, a person must be drugged or given a narcotic substance without their knowledge. The law does not apply if a person voluntarily drinks or takes drugs and is subsequently assaulted.
Now there are renewed calls to eliminate that distinction.
“Voluntary intoxication is not a license for sexual assault or gang rape. Period,” the governor said at a press conference on the matter on Friday.
Policymakers and activists demand change
For years, a group called Justice Without Exclusion has pressured Albany lawmakers to prioritize closing the voluntary poisoning loophole. More than two dozen other states criminalize having sex with someone who is too drunk to consent, said Lizzie Asher, one of the group’s co-founders. She said it should be a scandal that robbery victims receive more protections than sex crime victims under New York’s criminal code.
“If they go to the police station and say, ‘I was robbed,’ no matter how incapacitated that person is, the police are not going to say to that person, ‘Oh, but you were drunk. Your robbery didn’t happen,'” Asher said previously. “For some reason, of all the major crimes in the state, rape is the only one that is treated differently, so the level of intoxication kind of eliminates the fact that the crime exists.”
Asher and other activists and lawmakers held a press conference in the Bronx on Thursday morning to demand that loopholes in the law be closed.
On Friday, Hochul also said she supported changing the law to eliminate the loophole.
Initial handling of case raises questions
The woman who accused Cornell University fraternity members of gang rape “was not let down” by those who had an obligation to protect her, including police and county prosecutors, Hochul said Friday.
Hochul made the allegation at a news conference where she detailed her decision to turn the case over to a special prosecutor, state Attorney General Letitia James.
The governor said she made the decision after learning “disturbing details” about how authorities have handled the woman’s allegations so far, including that the district attorney closed the case without anyone interviewing the victim or anyone else involved in the alleged attack.
“In what world would the district attorney not even interview her or anyone else involved or even request a full transcript?” Hochul said. “This woman, this young woman, has been through something completely unspeakable. And then, at every turn, she has been failed by the people and institutions that have an obligation to protect her.”
She also criticized the Cornell University Police Department for not adequately conveying the woman’s story to prosecutors.
“After this young woman came forward, she spoke with police. She sat there for several hours and told them what exactly happened. Based on the new reports, she was 100 percent convinced she had been raped,” the governor said. “Shockingly, however, these words never appeared in the account Cornell police sent to prosecutors.”
Hochul said Thursday that she appointed James to oversee the case because she had lost confidence in the local district attorney’s ability to handle the case.
The investigation initially ended in 2024 without charges.
New York’s governor has turned to the attorney general in the past to oversee important cases.
In 2018, then-Gov. Andrew Cuomo appointed then-Nassau County District Attorney Madeleine Singas as special prosecutor to investigate Eric Schneiderman. Eric Schneiderman resigned as New York attorney general after women accused him of violent slapping, choking and other abuse.
In 2021, James oversaw a non-criminal investigation into sexual harassment allegations against the then-Gov. Andrew Cuomo, leading to his resignation. Cuomo initially tried to choose who would lead the investigation into the allegations. He then allowed James to choose two independent attorneys to lead it.
James’ office also handles other criminal work and has the authority under state law to investigate every death involving law enforcement in the state. But typically she cannot launch a criminal investigation without a referral from the local district attorney, the governor or a state agency, or an appointment like the one Hochul made Thursday.
Resources for victims of sexual assault are available through the National Sexual Violence Resource Center and the National Sexual Assault Telephone Hotline: 800-656-4673.