OMM Redaksiyası
A lawsuit over an alleged sexual assault at Cornell University has drawn attention to differences in US state laws on consent and intoxication. The woman, identified in legal documents as Jane Doe, alleges that several men drugged and raped her at the New York university in 2024.
According to the BBC, Doe says she had been drinking before going to a fraternity house, where men pressured her to take ketamine and gave her alcohol. She alleges that a group sexual encounter involving her was then advertised in a group message as “free”. Doe says she was intoxicated and unable to consent.
New York law does not automatically deem someone unable to consent because they voluntarily consumed alcohol or drugs. The issue has been described in US media as a “voluntary intoxication loophole”. Governor Kathy Hochul said last week that voluntary intoxication was “not a license for sexual assault or gang rape” and pledged to work with state lawmakers to close the loophole.
Some legal experts argue the law has been misinterpreted: it does not prevent people who chose to drink or take drugs from reporting sexual assault. However, they say, a person must show they were so incapacitated that they could not physically communicate an unwillingness to engage in sexual activity—a higher threshold than simply being intoxicated.
Dan Schorr, a former sex crimes prosecutor who advises universities on sexual assault cases, told the BBC that New York law still protects people assaulted while voluntarily intoxicated. He said sexual activity is non-consensual if a person cannot communicate consent or a lack of consent because of alcohol or drugs, regardless of whether they took the substances voluntarily.
Schorr said he had prosecuted people for sexually assaulting victims who had voluntarily become intoxicated, and that the defendants were convicted and imprisoned.
Legal threshold for incapacity
At least 19 states, including New York, set a higher threshold for intoxication to be treated as incapacity to consent, according to the report. New York law says a person cannot consent if they are “unconscious or for any other reason physically unable to communicate an unwillingness to an act”.
Mitchell Epner, a former prosecutor who has handled sex trafficking cases, told the BBC that the standard can be difficult to prove. He said prosecutors might not bring charges, or defendants might be acquitted, when someone was intoxicated but not completely incapacitated.
Epner said some states use lower thresholds, under which a person who is “impaired” or “significantly impaired” cannot consent. He said being too drunk to drive could be considered impairment at that level.
University disciplinary standards can differ from criminal law. Cornell uses affirmative consent, defined as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity”. The university says silence or a lack of resistance does not amount to consent.
Proposed changes face opposition
Epner supports a proposed amendment to New York law that would broaden the circumstances in which someone is considered too intoxicated to consent. The state Senate has passed a bill multiple times, but the Assembly has not brought it to a vote.
The bill would bar consent when substances had made a person “temporarily incapable of appraising or controlling” their conduct, if the other person knew or reasonably should have known about that condition. Pennsylvania has also pursued changes intended to make it easier for intoxicated victims to prove sexual assault.
State Representative Lea Webb, whose district includes Cornell, told the BBC that lawmakers were working to advance legislation that had undergone several amendments. She said the current law “puts the onus of proof on the victim”.
Schorr and criminal defence lawyers have criticised the proposed changes. The New York State Association of Criminal Defense Lawyers told the BBC that existing laws were sufficient and that people had been convicted of rape in cases involving voluntarily intoxicated victims.
The association said the proposed wording was too vague to enforce fairly and did not clearly define when someone is too intoxicated to engage in sexual activity. Schorr said there was no easy answer to where that threshold should lie, adding that it was difficult to establish a clear standard that would be applied consistently.
