The Cornell 7 case and the need to reform New York’s rape law

A 20-year-old Cornell student had been drinking. She was pressured into taking ketamine for the first time. Then, she alleges, seven fraternity members sexually assaulted her for hours, until nearly 6 a.m.

Was she raped?

The central question for the case should be whether she was capable of consent.

New York knows how to define consent. Since 2015, New York State’s Enough is Enough law has required every college in New York to adopt the same, clear definition: a person too drunk or high to make a choice cannot consent.

But under New York criminal law — which will be applied here — this is not the definition that will be used.

New York’s Penal Law says that how she became intoxicated matters. If she voluntarily became intoxicated, the law’s incapacity provisions may not protect her simply because she became too impaired to consent. Under state law, lack of consent generally must be shown through forcible compulsion or a clear expression of nonconsent.

Being too drunk or high only becomes relevant if the victim was drugged without her consent or knowledge or was unconscious (or otherwise physically unable to communicate unwillingness).

This standard holds a victim’s decision to drink against her, while giving a pass to those who abuse her in her compromised state. Advocates call this the “voluntary intoxication” loophole.

Now is the time to close this loophole here in New York and around the country.

I spent five years as an assistant district attorney in Queens, where I prosecuted domestic violence and sexual violence cases. I have sat in the rooms where charging decisions are made, and I know how much a statute shapes what happens there.

In Ithaca, the Tompkins County district attorney initially declined to bring charges. He pointed to the victim’s 2024 police statement, which he said described her drug use and sexual conduct as voluntary. After Jane Doe’s civil lawsuit against Cornell and the seven accused, he said he would reopen the case and present it to a grand jury. Gov. Hochul then appointed Attorney General Tish James as special prosecutor.

That process should run its course. The men named in her lawsuit are entitled to due process, and Jane Doe is entitled to a full and fair investigation.

But the district attorney’s reasoning with regard to the original police report exposes the problem. The voluntary intoxication loophole means a person may be too impaired to make a meaningful choice and still fall outside the law’s protections for incapacity.

New York is applying the wrong standard. Eighteen other states also take this misguided approach. Minnesota had the same rule until 2021, when its Supreme Court overturned a third-degree criminal sexual conduct conviction because the victim had chosen to drink. Minnesota’s legislature rewrote the law to close the loophole that same year.

All 19 states that still take this approach should change their laws to stop asking how a victim became intoxicated before it asks whether she could consent. New York, which already requires its colleges to take this more appropriate approach for internal college investigations, has no excuse to delay.

The state has had a fix pending since 2019. State Sen. Nathalia Fernandez and Assemblyman Jeff Dinowitz now carry it as sponsors of S.10632/A.101. The bill would let prosecutors focus on whether a victim could actually consent, not on how she became intoxicated.

Critics argue that the bill would expose people to prosecution for consensual conduct. It would not. It does not criminalize sex after drinking. It asks whether a person has lost the capacity to choose, a principle every college in New York should already apply.

Hochul, for whom I served as assistant secretary for public safety, has rightly called for an independent review of Cornell‘s civil response.

But a review of one university cannot fix the law that shaped this case from the start. Only the Legislature can do that. The Senate has already signaled its willingness by passing S.10632 this year. Hochul has expressed support for closing the loophole. Speaker Carl Heastie and the Assembly should pass legislation as soon as they return in January.

Seven years since the bill was introduced is far too long to wait. Every session the bill stalls, more survivors are told that the law cannot help them get justice.

The timing matters for other states, too. Last week, the Trump administration formally restored its first-term Title IX rules, which significantly narrowed the kinds of sexual misconduct reports schools are required to address under Title IX. The U.S. Education Department has also sharply cut the office that enforces Title IX. Survivors cannot count on Washington to lead, so states must.

And while closing these loopholes is necessary, it is not sufficient. Penal Law responds after harm is done. Prevention must begin before a student arrives on campus.

We teach teenagers to drive before we give them a license. But we do not consistently teach them about consent before they reach adulthood. Without that education, young people learn about sex and relationships from pornography, social media, and one another. Many adults find these conversations difficult. We should not expect young adults, whose judgment is still developing, to navigate them without guidance.

Most Americans already support teaching consent in high school and in college. As a mother of three, I am one of them.

Comprehensive, age-appropriate consent education and sex education teaches boundaries, healthy relationships, and respect for another person’s decisions. Research finds that consent education can reduce sexual violence. It is also associated with lower rates of unintended pregnancy and reduced risk of sexually transmitted infections.

Prevention is also sound fiscal policy. The CDC estimates that each rape costs about $122,000 in 2014 dollars over a victim’s lifetime in medical care, lost productivity, and criminal justice expenses, and that government bears roughly a third of that cost. Building a curriculum requires investment, but failing to prevent sexual violence costs far more.

Jane Doe’s case will now likely proceed to a grand jury, where it belonged from the start. It should not have taken a 101-page lawsuit and national attention to get there. Most survivors do not have those resources. The next survivor should not need them.

Turko is a former Queens assistant district attorney. She was the founding executive director of New York City’s Office of Crime Victim Supports, the nation’s first municipal office of its kind, and most recently served as assistant secretary for public safety for Gov. Hochul.