New York's Law Regarding Intoxication and Consent Needs Reform, But That's not the Core Issue in the Jane Doe Case
A number of readers and others have asked for my view of the lawsuit filed by Jane Doe and the ensuing controversy over her treatment by the Cornell police, the Ithaca District Attorney, and the university. I was reluctant to say anything because I have no direct knowledge of the case, which I first learned about when it made the news a couple of weeks ago. However, I suppose I am more knowledgeable than at least some of the millions of people expressing views on social media, so I shall say a few words about the internal university treatment of the case and then about the criminal law as it stands and as it might soon be amended.
To begin, two propositions are obvious to me. First, Cornell is hardly unique in the inadequacy of its responses to sexual violence. As is often the case, The Onion best captured this idea in a satirical story titled Nation Horrified To Think Sexual Assault Could Happen On College Campus. With characteristic deadpan, the short piece includes the following statement from a fictional Missouri resident: "Let’s nip this in the bud now before it happens a second or even third time."
There is an alarming amount of sexual violence occurring on college campuses, although it is not clear to what extent colleges as such are the cause of such violence. A 2014 Bureau of Justice Statistics study found that women ages 18-24 who were not enrolled in college were somewhat more likely to experience rape or other sexual violence than their college-enrolled counterparts. A subsequent study using data from 2015 to 2022, however, found the opposite effect. But regardless of how much of the campus sexual violence against young (overwhelmingly female) adults (by overwhelmingly male perpetrators) is attributable to the baseline rate for the college-age cohort, there is no excuse for colleges taking inadequate steps to address it.
Second, even if Cornell is not uniquely bad at preventing and responding to sexual violence on campus, it bears responsibility for what happens here. Moreover, there is reason to believe that there is a distinctively Cornellian dimension to this problem. This very year, Cornell agreed to pay over $ 1 billion to settle claims by victims of sexual abuse by former Cornell Medical School urologist (and current prison resident) Darius Paduch. The university settled the case for such an enormous amount because of substantial evidence of a systematic failure to rein in Dr. Paduch's criminal conduct.
The systems in place to address student-on-student sexual violence at the Ithaca campus are more robust than those that were apparently not in place to address doctor-on-patient abuse in the medical school. How well did they perform here?
A Cornell FAQ page says that the Title IX process initiated in response to Jane Doe's complaint resulted in the closing of the Chi Phi fraternity (which remains closed). That page and further reporting by The New York Times (here and here) indicate that all of the fraternity members named in the lawsuit were suspended, with two of them eventually being expelled. Whether the process should have resulted in more expulsions would depend on exactly what the evidence showed about each of them.
Based on the allegations in the complaint, it is difficult to see what distinguished the various individual fraternity members who participated from one another, but it is possible that the relevant decision makers were unable to determine which of the fraternity members involved in the incident were responsible for the most serious acts beyond the two who were expelled. Additional reporting from The New York Times includes excerpts of the full police interview of Jane Doe, in which she said "I don’t remember the very end of the event where I was raped [but] I can say with 100 percent confidence I was raped."
That interview also recorded other statements very clearly indicative of crimes, including that, as CBS News reported, Doe told the campus police "And then, of course, I was being hit at the same time. Physically hit very, very hard." I shall return to the question of criminal liability below, but first I have a few further thoughts about the Title IX process.
One understandable source of public outrage has been allegation 181 of the civil complaint, which states that all of the named fraternity member defendants "were afforded the opportunity to mitigate their conduct by submitting essays." Once again making an important point through biting satire, a story in The Onion was thus titled Cornell Vows That Rapists Will Be Forced To Write Much Longer Essays In The Future.
Biting, yes, but is that fair? The Cornell FAQ page linked above responds to the allegation and the outrage as follows:
Q: "Is it true that involved students only had to write essays as a disciplinary measure?"
A: "No."
That is a fair response to some of the public misunderstanding but notably, it is not a denial of the plaintiff's allegation, which does not state that all of the defendant students were required to write an essay as their sole disciplinary sanction but that they were given the opportunity to mitigate their sanctions by writing essays. I assume the FAQs were drafted with care and so I would provisionally interpret this one as not denying the allegation about essay writing opportunities.
I am broadly familiar with Cornell's Title IX process and student disciplinary procedures more broadly because I have served on various university-wide committees tasked with proposing reforms to them and have been indirectly involved with particular cases in which students I knew either brought or responded to charges. In addition, like other faculty and staff, I take yearly trainings. In my experience, essay writing is indeed one of the measures employed by the offices charged with investigating and sanctioning alleged misconduct. The theory, so far as it goes, is that the process should be educational and restorative rather than punitive, where possible.
I suppose essay writing in mitigation of punishment might be appropriate for peripheral characters in this episode--for example, any of the numerous fraternity members who received the despicable Snapchat group message alerting them that "Free pussy" was available in a room in the frat house and did not go to that room but also did not think this outrageous suggestion warranted any kind of intervention. Such indifference to misogynist cruelty justifies at least an educative sanction. But, as noted above, the Q&A on essay writing is provisionally best read to imply that the actual participants in the horrible conduct were offered an opportunity to mitigate their penalty by writing essays. If so, that would have been wholly inappropriate.
What about criminal punishment? There has been much criticism of both the Cornell Police and the Ithaca District Attorney, with each now seeking to blame the other for missteps. I'll put those issues aside to focus on what comes next.
If the allegations in Jane Doe's civil complaint are true, then the defendants' conduct was plainly criminal. Pages 25-28 of the complaint describe multiple sexual acts performed on Doe and expressly state that these were done "without her consent." If Doe is willing to testify to these, that would certainly be enough for New York Attorney General Letitia James, who has been appointed as special prosecutor in the case, to secure an indictment from a grand jury.
Whether James can secure convictions remains to be seen. The sworn statement Jane Doe signed as part of the initial investigation contains assertions that are more equivocal with respect to consent than what is in the complaint. During a trial, defense counsel would no doubt use the statement to impeach any testimony by Doe that is more in line with the civil complaint. And based on the Title IX transcript excerpts published by The Times, it is clear that the defendants will testify that Doe affirmatively consented.
But that doesn't mean that a criminal trial would be a purely "he said/she said" contest in which the jury tosses up its hands and finds the prosecution fails to have met its burden of proof. Perhaps one of the defendants will take a plea deal and then testify in a way that corroborates Doe's account in the civil complaint. There might also be third-party witnesses who could so testify.
Moreover, there is little doubt that if the condensed statement is used to impeach Doe's credibility, the prosecution will introduce excerpts of the full police interview, including that Doe was "100 percent confiden[t she] was raped" and that she was "physically hit very very hard." Like most U.S. jurisdictions, New York's evidence law generally bars prior consistent statements from an available witness as hearsay, but (also like most jurisdictions), it contains an exception to rebut a charge of recent fabrication.
Accordingly, a trial would likely feature testimony by Doe that she was gang-raped and testimony by some or all of the defendants that the activity was consensual. One might wonder why any consent the defendants will say Doe manifested is not vitiated by the fact that she was very intoxicated from having consumed a whole lot of alcohol, marijuana, and ketamine. The short of it is that under New York State law as potentially relevant here, a person will be deemed incapable of giving consent if they are "mentally incapacitated" or "physically defenseless." Standing alone, either of those terms might seem to apply to a very intoxicated person, but the words don't stand alone.
A further New York State statutory provision states: "'Physically helpless'" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act." Even the civil complaint does not allege that Doe was unconscious or unable to communicate.
That same provision also states: "'Mentally incapacitated'" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent." The civil complaint could be read to imply that the defendants administered alcohol and drugs to Doe without consent. It says the defendants "plied" her with marijuana and high-proof rum and "pressured" her to snort ketamine.
Depending on what "pressured" and "plied" mean here--and more importantly, depending on what exactly Doe would testify to--such conduct could be the basis for criminal liability under the "mentally incapacitated" provision. But the terms "pressured" and "plied" are sufficiently vague that they might not.
That might well strike many readers as deeply troubling. If someone is very drunk and/or high, shouldn't it be clear that they can't give meaningful consent to sex?
Many New York State lawmakers share this concern. In June of this year, a bill passed the New York State Senate that would expand the circumstances under which a person would be deemed incapable of consent due to intoxication, regardless of whether they became intoxicated voluntarily or involuntarily. It would add language to the statutes to make clear that lack of consent will be found if "the victim was under the influence of any drug, intoxicant, or other substance to a degree which rendered the victim temporarily incapable of appraising or controlling such person's conduct and such condition was known or reasonably should have been known to a person in the actor's situation."
The Jane Doe case has brought forth calls for the State Assembly (the lower house of the New York legislature) to pass the bill as well and for Governor Hochul to sign it into law. If that happens, New York will join a substantial number of states with similar laws.
One oddity of the bill's passage would be the possibility that both (or, where more than two people are involved, all) of the parties involved in a sexual act could be guilty of the crime. Not infrequently, drunk people have sex with other drunk people. Could it really be the intention of the New York legislature to subject them both (or all) to criminal prosecution?
Some states avoid that possibility by construing language in their respective statutes similar to the New York bill's "reasonably should have been known to a person in the actor's situation" language to take account of the fact that the actor (i.e., the defendant) was also intoxicated. Thus, if a person was so intoxicated that they were "temporarily incapable of appraising or controlling" their conduct, they would also be so intoxicated that they could not be expected to have known that their partner(s) were also so intoxicated. Neither party would be guilty of a crime.
The Massachusetts Supreme Judicial Court 2012 decision in Commonwealth v. Mountry takes this approach. Although the case did not involve a two-way prosecution, the court had occasion to decide whether the objective component of the state law ("should have known") was to be judged from the perspective of a reasonable sober person or a reasonable person with the defendant's actual level of intoxication. The court chose the latter.
However, that appears to be the minority position among states that have comparable statutes. Whether through specific holdings regarding rape and other crimes of sexual violence or through general bars on making voluntary intoxication a defense to any sort of crime, most states would allow a conviction even if the defendant's mental state mirrored that of the victim as a result of the defendant's intoxication. For example, a 2024 decision by an intermediate appellate court in Indiana rejected the defendant's argument that it was unfair to treat victim intoxication and defendant intoxication differently. On the facts of that case, it's implausible to think that the state could have also prosecuted the victim, but the reasoning of the opinion leaves open that possibility of reciprocal prosecutions in other circumstances.
A version of this mutual victimization issue can be found in the Jane Doe case itself. According to The New York Times story describing the Title IX files, one of the defendants in the civil suit claimed during the Title IX investigation that he "was 'a victim of sexual misconduct' because the woman had given him oral sex when he was 'too incapacitated' to consent." It does not appear that the Title IX investigators took this contention seriously, however.
More broadly, it does not appear that prosecutors have ever charged parties on opposite sides of the same sexual encounter with reciprocal crimes based on their mutual intoxication. To be realistic about these things, the vast majority of cases involve men taking sexual advantage of women or girls. But neither state law nor prosecutors making charging decisions can use a sex-based classification in deciding who's the victim and who's the perpetrator. And there will be some cases in which parties on both sides of the sexual activity are of the same sex, so a "charge the male" rule wouldn't always work even if it were constitutional.
To be clear, however, the reciprocal victimization problem is almost purely hypothetical. The fundamental problem with enforcement of the law regarding rape and other sexual violence is not that drunk men are being charged when they are just as much victims as the women testifying against them. The fundamental problem is that too often the system fails to investigate, prosecute, or secure convictions for sex crimes committed against female victims.
-- Michael C. Dorf