A ‘loophole’ in New York’s rape law may have shut the door on criminal charges in the Cornell case. It’s not the first time

By Lauren Mascarenhas, CNN

New York (CNN) — Resurfaced allegations of a gang rape at a Cornell University fraternity house have renewed outrage over what experts call a legal “loophole” in New York’s – and other states’ – sexual assault laws that can make it nearly impossible for survivors to seek justice if they voluntarily consumed alcohol or drugs before an assault.

At issue is the fact that the woman, identified only as Jane Doe, says she drank alcohol and accepted drugs the night she alleges she was sexually assaulted for hours and advertised as “free p*ssy” by someone in a Chi Phi fraternity member group chat.

The Tompkins County district attorney this week offered many words to describe Doe’s account of how the men assaulted her: disgusting, repugnant, offensive, morally reprehensible.

But he did not call it a crime.

“The young men who engaged in that conduct were morally wrong. It was disgusting, and so she reported that to the police, and the police investigated it. That does not mean – if it’s morally wrong or disgusting or offensive, all those things – it does not mean that the penal law was violated,” prosecutor Matthew Van Houten said on CNN’s “The Situation Room.”

His response has left many asking the same question: How could that be?

The answer, sexual assault survivors and their advocates say, is what’s come to be known as the voluntary intoxication “loophole” or “exclusion,” a gap in the law that exists in about 19 states in the US. It’s one reason countless assaults have gone unprosecuted, experts say, and adds to the overwhelming number of barriers survivors face in seeking justice.

What does the law say?

Under New York law, a person is guilty of rape if they engage in sexual contact with another person who is “incapable of consent by reason of being mentally disabled or mentally incapacitated.”

Here’s the “loophole:” A person is only considered “mentally incapacitated” under state law if they were temporarily unable to understand or control their actions due to the influence of a narcotic or intoxicating substance administered to them without their consent – or to any other act done to them without their consent.

Jane Doe willingly drank alcohol before arriving at the fraternity house, where members led her upstairs, she stated in a recent state lawsuit. Then, after the men surrounded her and pressured her to take ketamine – a dissociative anesthetic the Drug Enforcement Administration notes has been used to facilitate sexual assault – some of them sexually assaulted her for hours, according to the lawsuit, which seeks damages against seven men who were allegedly involved.

Doe told police she was okay with an initial encounter but said she did not consent to sexual contact later in the night, according to a six-page statement obtained by CNN detailing comments Doe made to investigators in the weeks after the alleged assault. She also described being physically hit.

In addressing Doe’s lawsuit allegations, Van Houten this week referenced her voluntary drug use in his explanation of the decision not to bring criminal charges, which he said were considered when she first came forward shortly after the incident.

“The facts provided by Jane Doe’s statement do not allege that she was either rendered incapable of controlling her own conduct or that any drug was administered to her without her consent,” he said.

Have there been attempts to change the law?

In New York and elsewhere, every legislative session presents a chance to amend the laws around sexual assault. The Cornell rape case has laid bare a systemic failure within the criminal justice system, said Stefan Turkheimer, vice president for public policy at RAINN, an anti-sexual violence organization.

Legislation to remove New York’s voluntary intoxication exclusion has been introduced annually for at least the past eight years without success. Some lawmakers have been pushing for change for even longer.

New York’s current law was originally written in the 1990s to address cases where people were “roofied,” or drugged without their knowledge, rendering them unable to consent, New York Assemblyman Jeffrey Dinowitz told CNN.

“Under the current law, somebody being voluntarily intoxicated, which happens all the time, is a virtual get-out-of-jail-free card for somebody who commits a sexual assault,” said Dinowitz, a Democrat. “And that’s just not right.”

In 2019, Dinowitz attempted to change that with legislation that prevents the use of a victim’s voluntary intoxication as a defense in sex crimes where the victim was incapacitated. He sponsored it again in 2020, 2021, 2022, 2023, 2024, 2025 and 2026. Despite the consistent support of victims’ advocates and other lawmakers, the legislation has never made it to the House for a vote.

“To me, it’s kind of like there’s a binary choice here,” Dinowitz said. “Either you’re on the side of the survivors of sexual assault or you’re on the side of the people who commit the sexual assaults. And I know where I stand.”

Opponents have raised concerns that it’s difficult to nail down the exact point at which a person becomes too drunk to consent. Others have questioned whether a new law paving the way for more prosecutions would disproportionately impact people of color due to existing biases in the criminal justice system.

The crime of sexual assault can make survivors feel incredibly alone, Turkheimer pointed out.

“The way to heal is to come forward, share with others, and find solace and protection and justice in that sharing – but that depends entirely on whether or not it is safe for that person to come forward,” he said.

“We really need to think about who we’re protecting and why,” he continued. “If we are actually trying to encourage survivors to come forward, we have to have people and systems who prioritize their safety.”

What would it take to change the law?

Changing these laws state by state has proven difficult – but not impossible. Last February, Summer Willis crawled to the Texas state capitol on bloody hands and knees to demand a change to the voluntary intoxication exclusion in state law that allowed her college sexual assault a decade earlier to go unprosecuted.

The lengths she went through to secure the win – that other advocates and lawmakers had repeatedly failed to achieve – paid off. The Summer Willis Act was signed into law later that year, changing the state’s sexual assault law and more clearly defining consent in Texas.

Willis made her way to New York last summer to throw her weight behind local advocates and survivors who were pushing to pass a similar law in that state. She told the story of her assault. They told theirs. But the bill was never called for a vote.

The legislative fix didn’t make it to a vote in 2026 either.

That was before Jane Doe’s story exploded onto the scene.

On Wednesday, New York State Assembly Speaker Carl Heastie, a Democrat – who had repeatedly blocked the bill from going to the floor for a full vote – announced he is forming a legislative working group to examine New York’s sexual assault laws, tasked with developing legislative recommendations for the 2027 session.

Turkheimer and others say it’s possible that Doe’s story has garnered enough attention to get the law changed.

Willis told CNN she saw herself in Doe’s account of sexual assault.

“The same law or lack of definition of consent which is prohibiting her from receiving justice happened to me over a decade ago, and happened to others decades and decades ago,” Willis told CNN. “Unless we do something about it now, then it’s going to keep on happening.”

She is now advocating for the passage of legislation in multiple states that will clearly define consent and open pathways for survivors to seek justice.

Willis has a message for the woman at the center of the Cornell rape investigation – and other survivors of sexual assault: “I believed I was alone for so long, and I just want them to know they’re not alone. They have so many people fighting for them. I’m fighting for them.”

Help is available: For help in the US, call the National Sexual Assault Hotline at 1-800-656-4673 or chat 24/7 on online.rainn.org.

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CNN’s Brittany Shammas, Gloria Pazmino and Pamela Brown contributed to this report.