A dangerous rewrite of rape law It puts sexual partners in an impossible position

Is there a “loophole” in New York law — and perhaps similar laws in other states — that allows a rapist to get away with it so long as his victim was voluntarily intoxicated? In the wake of the “Cornell 7” controversy, many prominent figures in public life have argued just that. And some of these figures hold the power to change the law — not least, New York Gov. Kathy Hochul, who earlier this month vowed to close the so-called voluntary-intoxication loophole. Under proposed legislation that enjoys broad, bipartisan support in the state legislature, if Person A chooses to get heavily drunk, her sexual partner, B, may be held criminally liable for rape, even if A appeared to grant consent at the time of the encounter.

This may sound reasonable to some. Yet it’s a terrible idea that would put sexual partners in an impossible position and all but guarantee life-ruining allegations of rape against people who do no wrong.

The factual backdrop to this are the “Jane Doe” allegations against seven Cornell fraternity brothers. For Hochul and many other would-be reformers, the case is emblematic of how the supposed loophole fails victims. In fact, the “Cornell 7” story presents a case study in the law working as it should. To weigh the underlying facts is to understand why there is no loophole at all.

Let’s briefly revisit those facts. Jane Doe’s civil lawsuit depicted a grueling, hours-long gang-rape. The lawsuit also portrayed the university administration and local district attorney as callous and indifferent. The media uncritically amplified these claims, kindling the flames of public wrath. Within hours, the faces of the alleged rapists had been plastered across the internet with (literal) calls for their heads; in short order, two were fired from their jobs.

A few public commentators dissented from the herd, among them Reason’s Robby Soave and The View’s Sunny Hostin. They raised concerns about the media’s framing of the events in question, particularly after the Tompkins County DA released a written defense of his decision not to press charges that included portions of Jane Doe’s statement to Cornell police in November 2024. The skeptics pointed out that this wasn’t a clear-cut case of rape for a number of reasons, including that both Jane Doe and several of the men had consumed large quantities of alcohol and ketamine throughout the night. Two of the men may have been more intoxicated than Jane Doe: one struggled to maintain an erection and began dry-heaving during the encounter; another passed out. 

A careful read of the lawsuit shows that the nonconsent component of the rape allegation wasn’t based upon use of force or the victim’s physical incapacitation. Instead, Jane Doe alleged that she had been too intoxicated to consent to any of the sexual activity — even though she acknowledged having voluntarily gone to the frat house and accepted an invitation to engage in group sex with two men. As the night wore on, other men came into the room to have sex with her; at some point, a revolting message was sent to a group chat advertising “free pussy.” But even according to her own lawsuit, Jane Doe willingly participated in the initial sexual encounter and much of the activity that occurred thereafter. On the occasions she explicitly stated that she wanted to stop, the men involved ceased and didn’t resume until she agreed to do so.

The DA explained to the public in his news release that although he found the young men’s behavior abhorrent, he couldn’t charge any of them with rape because in New York, to abrogate consent on intoxication grounds, the victim had to have consumed the substances in question against her will or been rendered unconscious or “physically unable to communicate unwillingness to an act.” Thus, while the young men’s persistence may have been gross, the events of that night excluded criminal charges.

In light of this — the fact that the DA had carefully and correctly concluded that a prosecution wasn’t warranted — a new culprit emerged: the law itself. Calls rang out on traditional and social media to “close the voluntary-intoxication loophole” and thus prevent men from routinely taking advantage of intoxicated women.

The push is misguided at its root.

The premise, shared by Hochul and many others, is a straw man: that men are routinely evading accountability for rape because if their victims have consumed alcohol, prosecutors can’t pursue sexual assault charges. That is a mischaracterization of the law. Neither New York nor any other state bars prosecutions for rape in circumstances that would otherwise be chargeable merely because the victim consumed alcohol. For example, if the victim were forced to have sex at knifepoint but had consumed several drinks that night, the assailant would still be charged with first-degree rape.

The Tompkins County DA couldn’t seek an indictment for rape in the Cornell case because intoxication alone can’t negate consent under New York law. Proponents of “closing the loophole” obviously wish to change the law to fit the Cornell case. In other words, they believe rape should be redefined to encompass situations in which an intoxicated woman agrees in the moment to engage in sexual activity but later determines she only did so because of her altered state, and believes a man or group of men took advantage of her.

But tweaking the law inevitably raises the question of what happens when the alleged perpetrator also was intoxicated. It is a common scenario in today’s America for two intoxicated people to meet at a bar or party and end up in bed together. If the next morning, one of them realizes he only engaged in sexual activity because he was drunk, and is overcome with remorse, does that mean he didn’t consent? Suppose both parties feel that way? If “consent” is defined by a formerly intoxicated party’s sentiments after the fact, rather than according to objective indicia such as physical resistance or verbal objections, theoretically both parties could file police reports and end up charged with rape — an absurd result that would make a travesty of our criminal justice system.

The counter to this might be that negation of consent by virtue of intoxication is inapplicable when both parties are drunk or high. But a law that only takes effect when one party is sober doesn’t resolve the issue. Proposed legislation in New York illustrates the conundrum. That bill would permit third-degree rape convictions when the prosecutor can prove that the complainant was “temporarily incapable of appraising or controlling” her behavior.

This definition puts a near-impossible burden on would-be defendants to discern whether a potential sexual partner can understand the nature and consequences of her behavior. Importantly, one’s degree of intoxication often can’t be established by outward appearances. Some people can be inebriated but appear relatively sober (I know many who possess an apparently supernatural ability to do just this). Others can bear external signs of intoxication such as slurring their words, while remaining in control and actively desiring to engage in sexual activity. It’s called date night.

Because it doesn’t rest on observable criteria, the suggested change to the law raises serious questions about unconstitutional vagueness — a due process issue that can lead courts to strike down the proposed legislation. As the US Supreme Court explained in Grayned v. City of Rockford, “vague laws may trap the innocent by not providing fair warning” and lend themselves to arbitrary and discriminatory enforcement by delegating policy decisions to police, prosecutors and juries without sufficiently clear standards. A criminal law predicated upon mind reading raises precisely these concerns.

Moreover, the new definition of rape would encompass circumstances that clearly shouldn’t be considered rape. Many women drink to excess or take other intoxicants fully intending and desiring to have sex with partners — who may or may not be intoxicated. It isn’t at all unusual for a woman (or a man) to be in the company of someone to whom she is attracted, hoping for a sexual encounter later, and drink substantial quantities of alcohol to calm the nerves. To legislate based on the notion that intoxication vitiates consent would create a legal system in which women are presumed to lack agency. 

Finally, those pushing to “close the loophole” fail to acknowledge that Empire State law already has a workable standard: a person can be charged with first-degree rape for engaging in sexual activity with someone who is unable to communicate willingness to consent. This formulation is superior to a law that presumes that intoxication and consent can’t go hand-in-hand. The existing law is also better than a standard as vague as “incapable of appraising or controlling” conduct, since it doesn’t require individuals to ascertain the subjective experience of a potential sexual partner. Rather, the law puts the onus on people to evaluate something observable prior to engaging in sexual activity: whether the intoxicated party lacks the ability to communicate.

The Cornell case has provoked a bitter national debate because it spotlights a distinction that many miss. Jane Doe, according to her statement to campus police, felt pressured and uncomfortable for the latter parts of the encounter, and afterward was regretful. But even by her own account, whenever she explicitly conveyed a desire for the activity to cease, the men stopped. Undoubtedly, some of the men behaved deplorably in moral terms. But morally deplorable and criminal aren’t always synonymous. 

“Closing the voluntary-intoxication loophole” would make criminals out of men (and women) who reasonably concluded they had a consenting partner at the time of a sexual encounter. That would mark a regression in the justice component of our criminal-justice system.

---