Understanding the problematic “gap” in New York criminal law as it applies to the “Cornell 7” case.
The author of this article, Matthew Galluzzo, is a criminal defense lawyer and former Manhattan sex crimes prosecutor. He was earned numerous trial victories in sex crimes cases as both a prosecutor and defense attorney in New York state and federal courts.
Recently, news agencies have devoted considerable coverage to an explosive story concerning the alleged rape of a female Cornell undergraduate student by seven fraternity members at the school in 2024. According to a recent civil lawsuit filed anonymously by the alleged victim, she was subjected to a brutal sexual assault by seven students while intoxicated and under the influence of drugs at a fraternity party at the university. The lawsuit includes damning text messages between brothers in the fraternity in which they appeared to be advertising the availability of “free pussy,” an apparent reference to a helpless or vulnerable woman at the party. The local prosecutor initially declined to bring a criminal case against the alleged perpetrators, citing legally insufficient evidence, but has since apparently changed course and elected to present evidence to a grand jury. Some observers were appalled at the prosecutor’s explanation for not arresting the young men in 2024, but the explanation is both complicated and not entirely unwarranted.
New York’s rape and sexual assault laws can be found in Penal Law Chapter 130. Without question, it is one of the most confusing and misunderstood chapters in the New York criminal code. Of course, for sexual contact to be criminal, it must be non-consensual. New York Penal Law Chapter 130.00 provides the definitions of various “non-consensual” situations and states of mind. Predictably, there are age restrictions on sexual consent, restrictions for the mentally disabled, and prohibitions between corrections officers and inmates and certain medical professionals and patients (Penal Law Sections 130.05). As it applies here, though, the relevant definitions for an “incapacity to consent” are the following:
“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent. Penal Law 130.00[6]
“Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Penal Law 130.00[7]
In addition, “forcible compulsion” means to compel by either: a. use of physical force; or b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped. Penal Law 130.00[8].
The issue in this Cornell case is that the alleged victim was intoxicated, but not involuntarily, apparently. The prosecutor’s initial assessment in 2024 was that she had willingly consumed drugs and alcohol. As explained in Penal Law 130.00[6], a lack of consent to a sexual activity based upon intoxication can only stem from involuntary intoxication, as in the case where someone’s drink was spiked, for example. Certainly, a person who gets so drunk that he/she passes out and becomes unconscious cannot give consent to sexual contact because they are “physically helpless”. Penal Law 130.00[7]. Furthermore, there was no allegation here that the alleged perpetrators physically threatened the alleged victim as contemplated by Penal Law 130.00[8]. So, the question becomes: what if someone gets really drunk – voluntarily – and then gets subjected to unwanted sexual contact without being unconscious? Is it the victim’s fault? Is there nothing the prosecutor can do?
Those are precisely the questions being posed by pundits and various commentators right now, and they are valid questions. New York’s law makes a strange and perhaps unwarranted distinction between those who are intoxicated voluntarily and intoxicated involuntarily. As far as consent is concerned, the reason for the intoxication ought to be irrelevant. But the Cornell prosecutor may have had a valid point that the victim’s situation did not fit neatly into any of the clear categories for “non-consent” in the New York Penal Law, since she was “voluntarily intoxicated” and evidently not unconscious at the time of the alleged assaults.
The Cornell prosecutor’s initial explanation seems a bit timid to this former sex crimes prosecutor, however. The term “physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Seemingly, a very intoxicated person could be conscious and nevertheless unable to meaningfully communicate unwillingness to an act. More importantly, though, there is a catch-all Rape in the Third Degree charge that would have probably applied to this situation: Under Penal Law 130.25, it is a felony to “engage[] in vaginal sexual contact with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.” As a practical matter, this charge gets applied in New York sometimes in these situations involving intoxication, but prosecutors also dismiss a lot of cases that fall into this gray area of the law. The charge does at least arguably make clear the rule of “affirmative consent,” meaning that a sexual actor has to get actual explicit consent from a person before engaging in sexual contact with that person; the onus is not on the person being subjected to the contact to communicate non-consent. That latter rule becomes important given the circumstances of this case.
The alleged victim’s statement to the prosecutors in 2024 has not been made fully public (though strangely the prosecutor has released portions of it), so we do not really know what she initially told investigators. But this seasoned investigator would have a lot of questions for her about the specifics of that evening. Obviously, if fraternity brothers were having sex with this woman at the party – one after another – it would have been incumbent upon each of them to get her verbal consent before penetrating her. Put another way, she was not required to say no when presented with a penis to avoid being raped (Penal Law 130.25). Perhaps the alleged victim does not remember these incidents and does not remember what she said because she was intoxicated. These types of cases are extremely problematic for prosecutors, because prosecutors cannot assume that consent was not given simply because the victim does not remember giving consent. If, however, the victim remembers the encounters, then she should be able to remember giving consent (or not). If she remembers that she did not give explicit consent to a fraternity brother, then this is a straightforward case of third-degree rape. Therefore, the ultimate question for the victim would be: what (if anything) do you remember? If she doesn’t remember the encounters, then it becomes a very challenging circumstantial case for the prosecutors based largely upon text messages and other evidence (perhaps a cooperating witness within the fraternity)?
Regardless, New York should probably reform this Penal Law statute to eliminate the voluntary/involuntary intoxication distinction. But it would be complicated and problematic to simply establish a rule that an intoxicated person is incapable of consent. After all, many (most?) people have probably engaged in consensual sexual contact while intoxicated. So, just how intoxicated would a person have to be in order for them to be incapable of consent under the law? Victims don’t know their own BACs (Blood Alcohol Contents) and usually don’t remember how much they had to drink. The combined effect of drugs and alcohol make it functionally impossible to set forth a workable medical standard or threshold for intoxication/non-intoxication.
Moreover, one could imagine a tidal wave of complaints being made to law enforcement by purported victims who had a few drinks, had sex with someone they regretted, and then claimed non-consent (to those readers who scoff at this observation, you have probably never worked in law enforcement). As it stands, the law – strictly interpreted – basically sets forth a rule that if a person is awake and can speak, then they can say no to sexual contact, and although it is not incumbent upon he or she to do so, the person would need to at least remember whether he or she did in fact communicate. That seems insufficiently protective and should be re-examined.
If you or a loved one have been arrested for a sex crime, you should strongly consider contacting Matthew Galluzzo to discuss his engagement. He has earned trial acquittals in rape and sexual assault cases throughout various state and federal courts in New York, and successfully prosecuted numerous sex crimes cases as a member of the Sex Crimes (Special Victims) Unit at the Manhattan District Attorney.