A backlash over the handling of a US woman’s sexual assault complaint against Cornell University fraternity members has highlighted what experts believe are issues with the current laws in many states regarding sexual assault and drinking.
The woman, known as Jane Doe in legal documents, last month filed a lawsuit alleging she was drugged and raped by several men in 2024 at the university in the state of New York.
Doe said she had been drinking earlier in the evening of the alleged incident and then went to a fraternity house, where several 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 said 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 said: “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 people who choose to consume alcohol or drugs from reporting sexual assault. It does, however, require them to prove they were so incapacitated they could not physically consent – a higher bar than being intoxicated.
The distinction reflects an ongoing debate in the US about what counts as consent when someone has been drinking.
Dan Schorr, a former sex crimes prosecutor, told the BBC that New York law still protects victims of assaults 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 always non-consensual, whether the ingestion of alcohol or drugs was voluntary or involuntary,” said Schorr, who also helps universities review sexual assault cases.
“I prosecuted many people who sexually assaulted someone who was voluntarily intoxicated,” he said, adding: “I got convictions. They went to prison.”
