CLAUDIA LAUER, DAVID A. LIEB A woman’s account of being sexually assaulted at a Cornell University fraternity house has advocates and lawmakers renewing their criticism of a New York law that makes it more difficult to prosecute people who have taken advantage of others too intoxicated to consent to sex.

Under state law, rape charges generally need to involve force or a clear refusal of sex, unless the victim is physically helpless due to being unconscious, or mentally incapacitated due to being drugged without their consent.

Those limitations have led to something nicknamed the “voluntary intoxication loophole.”Prosecutors can’t easily bring charges against someone who engaged in sex with someone who voluntarily became intoxicated to the point where their ability to say “yes” or “no” to sex was compromised.

Tompkins County District Attorney Matthew Van Houten cited that law as he defended his office’s initial decision not to file criminal charges against any of the men sued by a woman who says she was the victim of a gang rape at Cornell in 2024.

Van Houten said that in her sworn statement to campus police in 2024, the woman didn’t allege that she became intoxicated against her will, or was physically forced into sex or was unconscious when it happened.

“That’s victim blaming, straight up,” in state law, said Stefan Turkheimer, vice president of public policy for RAINN, the largest anti-sexual violence organization in the U.S. “It prevents a lot of cases from coming forward, where prosecutors are reluctant to try to push forward on a case where the person is incapacitated due to voluntary intoxication.”New York state lawmakers have considered bills to change the law over the years, though the proposals have stalled, despite support from prominent district attorneys and advocates.

Jeffrey Dinowitz, a state Assembly member who has sponsored such measures starting back in 2019, said the Cornell case is “exactly the type of situation this legislation would address” and hoped that there would be additional urgency in the coming legislative session to change the law.

“It’s just outrageous and it makes me angry that we haven’t passed this yet,” he said, adding that “it would at least ensure that the survivor would get justice.”The woman, identified only by a pseudonym in the civil lawsuit, filed the complaint Sept. 16, saying she was sexually assaulted at the Chi Phi fraternity house on the Ivy League campus in October 2024 after being pressured into snorting ketamine, smoking marijuana and drinking alcohol. She became completely incapacitated while frat members were sexually assaulting her, the lawsuit alleges.

Van Houten has since reopened the investigation, saying he would consider presenting the case to a grand jury for their consideration. But in a written statement issued Monday, he said his initial decision not to charge relied heavily on a statement the woman gave to police that was given to his office, in which he said she had described some of the male students exhibiting incapacitation but not herself. Police have not released that document, and the prosecutor’s statement only included sparse redacted pieces of that document in his explanation.

New York is one of 19 states with rape or sexual assault laws that consider intoxicated victims to be mentally incapacitated only if they became drunk or were drugged without their knowledge or consent, according to research by The Associated Press and a report published in The Journal of the American Academy of Psychiatry and the Law. Many of those laws have been in place for a long time. But states have been gradually moving to change them.

After the Minnesota Supreme Court overturned a sexual misconduct conviction in 2021 because the incapacitated victim had voluntarily become intoxicated, the state legislature revised its laws later that year to allow charges to be brought no matter whether an incapacitated victim had voluntarily or involuntarily become intoxicated. Michigan made a similar revision to its sexual assault laws in 2023, and Texas followed in 2025.

“That business of whether the victim was voluntarily intoxicated or involuntarily intoxicated should really not matter in the vast majority of cases, if not all of them,” said Chinmoy Gulrajani, a psychiatry professor at the University of Minnesota who has researched state sexual assault laws. That’s because “the assailant should have known that this is not a person who is in their right state of mind.”Turkheimer said these laws can have a disproportionate effect on campuses, where people may be experiencing alcohol or drugs in social settings for the first time. He said mental incapacitation laws aren’t about someone having just a few drinks, but about situations in which a person has lost the capacity to consent.

“The movement is, to look at a person who is incapacitated, regardless of how they got there, and actually give that person protection,” he said. “This is a situation where a person has reached a state where they lack the capacity to consent. And in that situation, the law should be protecting those people because they simply can’t protect themselves.”