A woman’s experience of sexual assault at a Cornell University fraternity has supporters and lawmakers renewing criticism of a New York law that makes it harder to prosecute people who take advantage of others who are too drunk to consent to sex.
Under state law, rape charges generally need to involve force or an explicit refusal of sex unless the victim is physically helpless because she is unconscious or mentally incapacitated because she was drugged without consent.
watch: New York prosecutor reopens Cornell rape investigation
These restrictions have led to a phenomenon known as “voluntary poisoning vulnerabilities.” Prosecutors cannot easily charge people who have sex with someone who is voluntarily drunk so that their ability to say “yes” or “no” to sex is compromised.
Tompkins County District Attorney Matthew Van Houten cited the law to defend his office’s initial decision not to bring criminal charges against any of the men sued by a woman who said she was the victim of a 2024 Cornell University gang rape.
Van Houten said that in a sworn statement submitted to campus police in 2024, the woman did not claim she was drunk against her will, was not physically forced to have sex, or was unconscious during sex.
Read more: Prosecutors reopen investigation into Cornell gang rape allegation after accuser files suit
Stefan Turkheimer, vice president of public policy at RAINN, the largest anti-sexual violence organization in the United States, said that under state law, “this is directly blaming the victim.” “It prevents a lot of cases from being tried, and prosecutors are reluctant to try to move forward with cases where the person was incapacitated by voluntary intoxication.”
New York lawmakers push again to change law
New York state lawmakers have been considering bills to change the law for years, but the proposals have stalled despite support from prominent district attorneys and advocates.
State Assemblyman Jeffrey Dinowitz, who has sponsored such a measure since 2019, said Cornell’s case is “exactly the situation this legislation is meant to address” and wants to see more urgency in changing the law in the upcoming legislative session.
“It’s outrageous and it makes me angry that we haven’t passed this yet,” he said, adding that “it would at least ensure that survivors get justice.”
The woman, who uses only a pseudonym in the civil lawsuit, filed the lawsuit on Sept. 16, alleging that she was sexually assaulted in October 2024 at the Chi Phi fraternity house on the Ivy League campus after being forced to take ketamine, smoke marijuana and drink alcohol. The lawsuit alleges that she was completely incapacitated when fraternity members sexually assaulted her.
Van Houten has since reopened the investigation and said he would consider presenting the case to a grand jury for consideration. But in a written statement released Monday, he said his initial decision not to prosecute hinged in large part on a statement the woman gave police, which was submitted to his office, in which he said she described some of the male students who appeared to be incapacitated but not herself.
Police have not released the document and only sparsely redacted portions of it were included in prosecutors’ statements.
Other states with intoxication laws are moving to change them
New York is one of 19 states with rape or sexual assault laws that only deem an intoxicated victim mentally incapacitated if they were drugged without their knowledge or consent, according to research by The Associated Press and a report published in the Journal of the American Academy of Psychiatry and the Law.
Many of these laws have been in place for a long time. But states have gradually moved to change them.
After the Minnesota Supreme Court overturned a sexual misconduct conviction in 2021 because the incapacitated victim was voluntarily intoxicated, the state Legislature later that year changed the law to allow charges to be filed regardless of whether the incapacitated victim was voluntarily or involuntarily intoxicated. Michigan made similar changes to its sexual assault laws in 2023, and Texas followed in 2025.
“In the vast majority of cases, if not all cases, it doesn’t really matter whether the victim was voluntarily or involuntarily intoxicated,” said Chinmoy Gulrajani, a professor of psychiatry at the University of Minnesota who studies state sexual assault laws. That’s because “the attacker should know that this is not a person in their right mind.”
Turkheimer said these laws can have a disproportionate impact on campuses because people may be drinking or using drugs socially for the first time. He said mental incapacity laws were not about a person having just a few drinks, but about a person losing their capacity to consent.
“The purpose of this campaign is to focus on a person who is incapacitated, regardless of how they got there, and actually provide them with protection,” he said. “In this case, a person has reached a state of lacking capacity to consent. In this case, the law should protect these people because they simply cannot protect themselves.”
Associated Press reporter Anthony Izaguirre in New York contributed to this report.
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