How drunk is too drunk? Cornell rape allegations expose 'loopholes' in consent laws

How intoxicated is too intoxicated? Cornell rape claims expose alleged ‘loopholes’ in consent laws

A backlash over how a US woman’s sexual assault complaint against Cornell University fraternity members was handled has drawn attention to what experts say are problems with current laws in many states on sexual assault and drinking.

The woman, identified as Jane Doe in legal filings, sued last month, alleging that she was drugged and raped by several men in 2024 at the university in New York state.

Doe said she had been drinking earlier that evening before going to a fraternity house, where several men pressured her to snort ketamine and gave her alcohol before promoting a “free” sexual encounter with her in a group message.

She said she was intoxicated during the alleged incident and was unable to consent.

Under current New York law, someone who voluntarily takes drugs or alcohol — rather than becoming intoxicated without consent — is not automatically deemed incapable of consenting to sex.

US media has widely described this as the “voluntary intoxication loophole”.

Last week, New York Governor Kathy Hochul said: “Voluntary intoxication is not a license for sexual assault or gang rape” and said she would work with the state legislature to close the “loophole”.

But some experts say the law has been misunderstood and does not prevent people who choose to drink or use drugs from reporting sexual assault. It does, however, require them to show they were so incapacitated that they could not physically consent — a higher threshold than simply being intoxicated.

The issue reflects an ongoing debate in the US over what counts as consent when someone has been drinking.

New York law still protects victims of assaults who have chosen to drink or take drugs.

“If a person cannot express consent or lack of consent due to the consumption of alcohol or drugs, any sexual activity with them is always non-consensual, whether the ingestion of alcohol or drugs was voluntary or involuntary,” said Schorr, who also helps universities review sexual assault cases.

“I prosecuted many people who sexually assaulted someone who was voluntarily intoxicated,” he said, adding: “I got convictions. They went to prison.”

Some say the problem with the current law is that the threshold for being too intoxicated to consent is set too high.

At least 19 states, including New York, use a higher standard for the level of intoxication needed to determine that someone is incapacitated and unable to consent.

New York law says a person cannot consent to sex if they are “unconscious or for any other reason physically unable to communicate an unwillingness to an act”.

Schorr said this applies to people who are too incapacitated from drinking to consent.

But another legal expert BBC spoke to said that can be hard to prove.

Some prosecutors “may not bring charges or defendants may be acquitted because someone ‘gave consent’ while intoxicated, but not completely incapacitated”, according to Mitchell Epner, a former prosecutor who has handled sex trafficking cases.

He said that in other states with lower legal thresholds for incapacitation, someone who is “impaired” or “significantly impaired” cannot consent, and that being too drunk to drive could be considered to meet that standard.

College campuses apply different consent standards from criminal law, including Cornell, which uses affirmative consent, defined as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity”. Cornell says silence or lack of resistance does not amount to consent.

Epner supports a proposed change to New York’s law to broaden the circumstances in which someone is too intoxicated to consent. The New York Senate has passed a bill several times, but the state Assembly has not brought it to a vote.

That bill says people cannot give consent if they are under the influence of substances that have made them “temporarily incapable of appraising or controlling” their conduct, and if “such conduct was known or reasonably should have been known” to the other person.

Pennsylvania has also tried to change the law to make it easier for intoxicated victims to prove they were assaulted.

“If somebody’s too drunk to drive, they’re too drunk to - fill in your verb of choice,” Epner said.

Representative Lea Webb, whose district includes Cornell University, told the BBC News Channel that she and other lawmakers were working to advance legislation on the issue, which has gone through several amendments.

New York’s current laws, she said, “puts the onus of proof on the victim”.

Schorr and criminal defence attorneys, meanwhile, criticised the proposed changes to New York’s sexual assault laws.

New York’s State Association of Criminal Defense Lawyers said in a statement to the BBC that New York’s current laws were adequate, and that “people have been convicted of rape in cases involving voluntarily intoxicated victims”.

The group said the phrase “incapable of appraising or controlling their conduct” was “simply too vague to be fairly enforced”, adding that the legislation does not clearly define what level of intoxication makes someone too impaired to engage in sexual conduct.

Schorr said it is not easy to answer the question of the exact point at which someone is too intoxicated to consent.

He added: “How should the law address that? It is very challenging to find a clear standard that will be evenly applied.”

“It’s a conversation we should have as a society, as a state”.