“She never says that she was drugged without her knowledge. She admits to taking drugs and alcohol voluntarily and with knowledge. She does not allege that she was forced to engage in any acts. She does not say that she was physically helpless or unconscious or incapacitated at any point during the time at the fraternity house.”

Tompkins County District Attorney Matthew Van Houten didn’t directly refer to New York’s voluntary intoxication loophole in his statement confirming this week that his office is taking a fresh look at rape allegations at Cornell after declining to do so in 2024. But the controversial law—which many say requires an extraordinarily high bar for victims of rape who willingly became intoxicated to prove that they were unable to consent to sex—seems to animate nearly every turn of his remarks. Specifically, that the victim in the incident, identified as Jane Doe, “admits to taking drugs and alcohol voluntarily and with knowledge,” and that she does “not say that she was physically helpless.” Take a look, and much of the same language appears in the state’s laws on rape.

If that strikes you as victim-blaming, you’re not alone; advocates of sexual assault victims and a majority of New York’s State Assembly members have long condemned the law for exactly the same. Now, amid national outrage over the allegations, questions have emerged about whether the statutes may have deterred prosecutors from pursuing the case.

I talked to Jane Manning, director of Women’s Equal Justice, about the laws’ likely role in tanking the Cornell case back in 2024, the history behind the statutes and the movement to reform them—and the person standing in the way of change.

Let’s give a brief overview of the rape laws surrounding the Cornell allegations.

There are several different rape statutes at play here. First-degree rape requires that the victim either be the victim of forcible compulsion, meaning that extreme violence took place, or that the victim be “physically helpless.” Rape in the second degree applies when a victim is involuntarily drugged, such as a drink being spiked. Rape in the third degree applies where none of the above statutes apply, but the victim gives an express verbal declaration of non-consent. Those laws also include other provisions, including age-related provisions. But these are the statutes that mainly apply in a situation like the Cornell case where a person is intoxicated.

How does the law determine “physical helplessness?“

Under New York State law, being physically helpless is defined as being unconscious or physically unable to communicate a lack of consent. That word “physically unable” is really important because what that means is that it’s not enough if the person is severely mentally disoriented or confused. They have to be........

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