玛德琳·哈尔珀特 6小时前针对一名美国女子向康奈尔大学兄弟会成员提起的性侵指控的处理方式引发的争议，凸显了专家们认为的许多州现行性侵与饮酒相关法律中存在的问题。
Madeline Halpert 6 hours ago 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.
这名在法律文件中被称为“简·多伊”的女子，上月提起诉讼，指控自己于2024年在纽约州的这所大学内遭多名男子下药并强奸。
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.
多伊称，案发当晚她曾饮酒，随后前往一所兄弟会会所。在那里，多名男子强迫她吸食氯胺酮，并不断劝酒，随后还在群聊中宣传可“免费”与她发生性关系。她表示，案发时自己已处于醉酒状态，根本无法作出同意的决定。
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.
根据纽约州现行法律，自愿摄入毒品或酒精的人——即并非在不知情的情况下醉酒——并不会被自动视为无法对性行为作出同意。美国媒体普遍将这一条款称为“自愿醉酒漏洞”。
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".
上周，纽约州州长凯西·霍楚尔表示：“自愿醉酒绝不是实施性侵或轮奸的借口”，她将与州立法机构合作以填补这一“漏洞”。
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".
不过部分专家指出，该法律其实被误解了：它并未阻止那些选择饮酒或吸毒的人举报性侵事件。只是要求他们必须证明自己已丧失行动能力、无法作出同意决定——这一标准远高于单纯的醉酒状态。
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.
这一法律界定折射出美国社会关于“饮酒后何种状态才算无法同意”的持续争论。
The distinction reflects an ongoing debate in the US about what counts as consent when someone has been drinking.
曾任性犯罪检察官的丹·肖尔对BBC表示，纽约州法律依然保护那些选择饮酒或吸毒的性侵受害者。
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.
“如果一个人因饮酒或服药而无法表达同意或不同意，那么无论其饮酒或服药是出于自愿还是被迫，与此类人发生的任何性行为均属非自愿行为，”负责协助大学审查性侵案件的肖尔说道。
"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.
“我曾起诉过许多对自愿醉酒者实施性侵的罪犯，”他补充道，“最终他们都被判有罪并入狱。”那么，究竟什么情况才算丧失行为能力呢？
"I prosecuted many people who sexually assaulted someone who was voluntarily intoxicated," he said, adding: "I got convictions. They went to prison." What counts as incapacitated?
有人认为现行法律存在的问题在于：判定一个人是否醉到无法表达同意的标准定得过高。
Some believe issue with the current law is that the bar is set too high with regards to what counts as being too intoxicated to give consent.
包括纽约州在内的至少19个州，都设定了更为严格的标准，用以界定一个人何时醉到丧失行为能力且无法表达同意。
At least 19 states, including New York, have a higher bar for the level of intoxication required to deem someone incapacitated and unable to consent.
纽约州的法律条款规定：如果一个人“处于昏迷状态，或因其他原因身体上无法表达不愿发生性行为的意思”，则无法对性行为表示同意。
The New York law includes a provision that someone cannot consent to sex if they are "unconscious or for any other reason physically unable to communicate an unwillingness to an act".
肖尔指出，这一条款适用于因饮酒而丧失行为能力、无法表达同意意愿的人。不过，BBC采访的另一位法律专家则表示，这一点很难证实。
This applies to people who are too incapacitated from drinking to consent, Schorr said. But another legal expert the BBC spoke to says that can be difficult to prove.
曾负责处理性贩卖案件的前检察官米切尔·埃普纳称，有些检察官“可能不会提起诉讼，有些被告也可能被判无罪，因为这些人虽然处于醉酒状态，但并未完全丧失行为能力，仍可‘表示同意’”。
Some prosecutors "may not bring charges or defendants may be acquitted because someone 'gave consent' while intoxicated, but not completely incapacitated", according to Mitchell Epner, a former prosecutor who has handled sex trafficking cases.
他提到，在那些对丧失行为能力的标准设定得较低的其他州，只要一个人出现“行为失常”或“严重失常”的情况，即无法表达同意；而醉到无法开车的程度也可被视为符合这一标准。
He said that in other states that have lower legal bars for incapacitation, someone who is "impaired" or "significantly impaired" cannot consent, and that being too drunk to drive a car could be considered as being at this level.
各大学在判定同意与否时所采用的标准与刑法规定有所不同。例如康奈尔大学便采用“明确同意”原则，即“所有参与者均知情、自愿且共同决定发生性行为”。该校规定，保持沉默或没有反抗均不能视作同意。推动法律变革的努力埃普纳支持一项修改纽约法律的提案，旨在扩大“因醉酒而无法作出同意决定”的界定范围。该法案虽已多次在纽约州参议院获得通过，但始终未能在州众议院进入表决程序。
College campuses have different standards for consent than criminal law, including Cornell, which uses a standard of affirmative consent, defined as "a knowing, voluntary, and mutual decision among all participants to engage in sexual activity". Cornell says silence or lack of resistance does not constitute consent. A push for change Epner supports a proposed change to New York's law to widen the scope of when someone is too intoxicated to consent. The New York Senate has passed a bill multiple times, but the state Assembly failed to bring it up for a vote.
该法案规定：若某人受到药物或酒精影响，导致其“暂时丧失判断或控制自身行为的能力”，且另一方当事人对此“明知或理应知晓”，则该人便无法作出有效的同意决定。
That bill states that people cannot give consent if they are under the influence of substances that have rendered them "temporarily incapable of appraising or controlling" their conduct, and "such conduct was known or reasonably should have been known" to the other person.
宾夕法尼亚州同样在努力推动法律修订，旨在帮助醉酒状态下的受害者更顺利地证明自己遭受了性侵。
Pennsylvania has also made efforts to try and change the law to make it easier for victims who were intoxicated to prove they were assaulted.
“如果一个人醉到连车都开不了，那他肯定也醉到无法作出任何决定了，”埃普纳说道。
"If somebody's too drunk to drive, they're too drunk to - fill in your verb of choice," Epner said.
代表康奈尔大学所在选区的众议员莉娅·韦布向BBC新闻频道表示，她和同僚们正致力于推动相关立法，该法案目前经历了多次修订。她指出，现行纽约法律“将举证责任完全推给了受害者”。
Representative Lea Webb, whose district includes Cornell University, told the BBC News Channel she and her fellow lawmakers were working to push through legislation on the issue, which has gone through several amendments. New York's current laws, she said, "puts the onus of proof on the victim".
另一方面，肖尔及多名刑事辩护律师则对纽约拟议中的性侵法律修正案提出批评。
Schorr and criminal defence attorneys, meanwhile, criticised the proposed changes to New York's sexual assault laws.
纽约州刑事辩护律师协会在致BBC的声明中称，现行法律已足够完善，且“已有多起案件中自愿醉酒的受害者成功被认定为强奸受害者”。
New York's State Association of Criminal Defense Lawyers said in a statement to the BBC New York's current laws were sufficient, and that "people have been convicted of rape in cases involving voluntarily intoxicated victims".
该协会强调，使用“丧失判断或控制自身行为的能力”这类表述“过于模糊，难以公正执行”，并指出相关法案并未明确界定何种醉酒程度才构成无法作出同意决定的标准。
The group said using language that a victim was "incapable of appraising or controlling their conduct" was "simply too vague to be fairly enforced", adding that the legislation does not give clear details on what constitutes someone being too intoxicated to engage in sexual conduct.
肖尔坦言，要确定究竟何种程度才算“醉酒到无法同意”并非易事。
Schorr said it was not easy to answer this question of what exact point someone is too intoxicated to consent.
他补充道：“法律该如何应对这一问题？要找到一个能普遍适用的明确标准实在极具挑战性。这确实是我们整个社会乃至整个州都应当展开探讨的议题。”美国纽约 性暴力
He added: "How should the law address that? It is very challenging to find a clear standard that will be evenly applied." "It's a conversation we should have as a society, as a state". New York United States Sexual violence