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

In practice, a backlash over the handling of a US woman's sexual assault complaint against Cornell University fraternity members has highlighted what experts believe are problems with the current laws in numerous states regarding sexual assault and drinking.

Key points

• Representative Lea Webb, whose district includes Cornell University, informed the BBC News Channel she and her fellow lawmakers were working to push through legislation on the problem.
• Dan Schorr, a former sex crimes prosecutor, informed the BBC that New York law still protects victims of assaults who have chosen to drink or take drugs.
• At least 19 states, including New York, have a higher bar for the level of intoxication required to deem someone incapacitated and unable to consent.
• Epner supports a proposed change to New York's law to widen the scope of when someone is too intoxicated to consent.
• Schorr and criminal defence attorneys, meanwhile, criticised the proposed changes to New York's sexual assault laws.

In practice, the woman, known as Jane Doe in legal documents, last month filed a lawsuit alleging she was drugged and raped by a number of men in 2024 at the university in the state of New York.

Doe remarked she had been drinking earlier in the evening of the alleged incident and then went to a fraternity house, where a number of men pressured her to snort the drug ketamine and plied her with alcohol before advertising a "free" sexual encounter with her in a group message.

She remarked she was intoxicated during the alleged incident and could not provide consent.

Under current New York law, a person who voluntarily consumes drugs or alcohol – rather than becoming intoxicated without their consent – is not automatically considered unable to consent to sex.

US media has been widely reporting it as the "voluntary intoxication loophole".

New York Governor Kathy Hochul last week remarked: "Voluntary intoxication is not a license for sexual assault or gang rape" and that she would work with the state legislature to close the "loophole".

But some experts say the law has been misinterpreted and that it does not stop individuals who choose to consume alcohol or drugs from reporting sexual assault. It does, nevertheless, require them to prove they were so incapacitated they could not physically consent – a higher bar than being intoxicated.

In practice, the distinction reflects an ongoing debate in the US regarding what counts as consent when someone has been drinking.

"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, " remarked Schorr, who additionally helps universities review sexual assault cases.

"I prosecuted many people who sexually assaulted someone who was voluntarily intoxicated, " he remarked, adding: "I secured convictions. They went to prison." What we know regarding Cornell University frat house rape investigation. What counts as incapacitated?

Some believe matter with the current law is that the bar is set too high with regards to what counts as being too intoxicated to provide consent.

Notably, the New York law includes a provision that someone cannot consent to sex if they are "unconscious or for any other reason physically unable to communicate an unwillingness to an act".

This applies to individuals who are too incapacitated from drinking to consent, Schorr stated.

But another legal expert the BBC spoke to notes that can be challenging 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 remarked that in other states that have lower legal bars for incapacitation, someone who is "impaired" or "significantly impaired" cannot consent, and that being too drunk to drive a car could be considered as being at this level.

College campuses have different standards for consent than criminal law, including Cornell. It uses a standard of affirmative consent, defined as "a knowing, voluntary, and mutual decision among all participants to engage in sexual activity". Cornell notes silence or lack of resistance does not constitute consent. 'Ashamed': Cornell students gather to voice anger over alleged gang rape. A push for change.

Epner supports a proposed change to New York's law to widen the scope of when someone is too intoxicated to consent. The New York Senate has passed a bill multiple times, but the state Assembly failed to bring it up for a vote.

That bill states that individuals cannot provide consent if they are under the influence of substances that have rendered them "temporarily incapable of appraising or controlling" their conduct, and "such conduct was known or reasonably should have been known" to the other person.

Pennsylvania has additionally produced efforts to try and change the law to create it easier for victims who were intoxicated to prove they were assaulted.

"If somebody's too drunk to drive, they're too drunk to – fill in your verb of choice, " Epner remarked.

Representative Lea Webb, whose district includes Cornell University, informed the BBC News Channel she and her fellow lawmakers were working to push through legislation on the problem. It has gone through a number of amendments.

New York's current laws, she remarked, "puts the onus of proof on the victim".

New York's State Association of Criminal Defense Lawyers remarked in an official note to the BBC New York's current laws were sufficient, and that "people have been convicted of rape in cases involving voluntarily intoxicated victims".

Notably, the group remarked using language that a victim was "incapable of appraising or controlling their conduct" was "simply too vague to be fairly enforced", adding that the legislation does not provide clear details on what constitutes someone being too intoxicated to engage in sexual conduct.

Schorr remarked it was not straightforward to answer this question of what exact point someone is too intoxicated to consent.

He continued: "How should the law address that? It is particularly challenging to find a clear standard that will be evenly applied."

"It's a conversation we should have as a society, as a state".

Taken together, the developments around how drunk is too drunk? Cornell rape allegations expose ' loopholes' in consent point to a situation that is still moving, and the coming days should bring more clarity.