A woman identified in court documents as Jane Doe filed a lawsuit last month alleging that she was drugged and raped by several men at Cornell University in the state of New York, the BBC reports.
Doe stated that she had been drinking earlier that evening, before going to a fraternity house where several men pressured her to take the drug ketamine and encouraged her to drink alcohol, before they posted in a group chat about a 'free' sexual encounter with her. She claims that during the alleged incident, she was intoxicated and unable to give consent.
Under current New York law, a person who consumes drugs or alcohol voluntarily is not automatically considered incapacitated. Media outlets have widely referred to this gap as the 'voluntary intoxication' loophole.
New York Governor Kathy Hochul stated last week: 'Voluntary intoxication is not a license for sexual assault or rape,' and announced that she would work with the legislature to close this 'loophole'.
Some experts argue that the law is being misinterpreted and that it does not prevent people who choose to drink or take drugs from reporting sexual assault. The law requires them to prove that they were so incapacitated that they could not physically consent, a higher threshold than mere intoxication.
Dan Schorr, a former sex crimes prosecutor, told the BBC that New York law still protects victims of assault 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 without consent, regardless of whether the intake of alcohol or drugs was voluntary or involuntary,' said Schorr. He added: 'I have prosecuted many people who sexually assaulted someone who was voluntarily intoxicated, and I have received guilty verdicts. They went to prison.'
At least 19 states, including New York, have a higher threshold for the level of intoxication required for a person to be considered incapacitated and unable to consent. New York law includes a provision stating that a person cannot consent to sex if they are 'unconscious or for any other reason physically unable to express unwillingness to the act'. This, according to Schorr, applies to persons who are too incapacitated by drinking to give consent.
Mitchell Epner, a former prosecutor who has worked on human trafficking cases, said that some prosecutors 'may not bring charges or may acquit defendants because the person gave consent' while intoxicated but not completely incapacitated. Epner noted that in other states with lower legal thresholds for incapacitation, a person who is 'impaired' or 'significantly impaired' cannot give consent, and someone who is too drunk to drive a car might be considered at that level.
Cornell University applies a standard of affirmative consent, defined as 'a conscious, voluntary, and mutual decision by all participants to engage in sexual activity'. The university states that silence or lack of resistance does not constitute consent.
Epner supports the proposed amendment to New York law, which would expand the scope of situations in which a person is considered too intoxicated to give consent. The New York Senate has voted on the bill several times, but the State Assembly has not put it to a vote. The bill stipulates that persons cannot give consent if they are under the influence of substances that have made them 'temporarily unable to assess or control' their behaviour, and 'such behaviour was known or should reasonably have been known' to the other person. Pennsylvania has also made efforts to change its law to make it easier for victims of intoxication to prove assault.
'If someone is too drunk to drive, they are too drunk for [any] activity,' said Epner.
State Representative Lea Webb, whose district includes Cornell University, told the BBC News Channel that she and her colleagues are working to push through a bill on the issue, which has undergone several amendments. Webb said that current New York laws 'place the burden of proof on the victim'.
Schorr and criminal defence attorneys have criticised the proposed amendments to New York's laws on sexual assault. The New York State Association of Criminal Defence Attorneys told the BBC that current laws are sufficient and that 'people are convicted of rape in cases involving voluntarily intoxicated victims'. The association stated that the formulation that a victim is 'incapable of assessing or controlling their behaviour' is 'vague and difficult to enforce fairly', adding that the law does not provide clear details on what constitutes being too intoxicated for sexual activity. Schorr said that it is difficult to answer the question of exactly when a person is too intoxicated to give consent.
