Cornell sexual assault case brings 2019 bill into spotlight
Trending
Assemblyman Jeffrey Dinowitz has sponsored legislation since the 2019-20 legislative session that would close what is known as the "voluntary intoxication" loophole in sexual assault and rape cases.
His bill (A.101/S.10632 in the 2025-26 legislative session) has passed the state Senate three times but never crossed the finish line in the state Assembly. It may happen this year, possibly, even, in a special session in the wake of protests over the handling of a 2024 sexual assault incident at a Cornell University fraternity house.
Dinowitz' bill has received bipartisan co-sponsorship, including from Assemblyman Andrew Molitor, R-Westfield, and Assemblyman Joe Sempolinski, R-Canisteo. The legislation would amend the state Penal Law in relation to prohibiting the use of the intoxication of a victim as a defense to a criminal charge for sex crimes. Criminal charges in sex crimes would be allowed to be filed in cases where the victim had become voluntarily intoxicated if a reasonable person in the defendant’s position should have known that the victim was incapable of giving consent due to that intoxication.
Dinowitz has been active over the past week on social media in calling for the state Legislature to pass A.101/S.10632.
"Intoxication is not consent," Dinowitz said in a Facebook post on Sunday. "The horrific story emerging from Cornell shows us exactly why NY should pass A.101/S.10632 and strengthen our laws to protect sexual assault survivors. I thank the brave advocates and survivors that stood with us, my colleagues for continuing to support this essential piece of legislation and my partner in the Senate, Senator Nathalia Fernandez. Survivors deserve our unwavering support and I will continue to fight for this legislation until we get the job done."
Under New York 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. 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.
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.
In the days since the lawsuit was filed, Gov. Kathy Hochul has said Jane Doe was "failed by people and institutions” including the Cornell police and local District Attorney Matthew Van Houten. Hochul appointed state Attorney General Letitia James last week to take over a criminal investigation that Van Houten had reopened days earlier, and the governor called for an independent review of Cornell's handling of the matter.
Hochul said last week she supports closing the voluntary intoxication loophole, with some advocates calling on Hochul to call a special session of the state Legislature to pass Dinowitz' bill.
"This case has also exposed another problem we need to address – a gap in state law," Hochul said. "If someone is too intoxicated to consent, it should not matter whether they chose to use drugs or alcohol. Voluntary intoxication is not a license for sexual assault or gang rape, period. I support closing this loophole and will work with the New York state Legislature to accomplish this."
A Pennsylvania lawmaker has recently filed a co-sponsorship memorandum to close a similar loophole in Pennsylvania law. Pennsylvania law, according to the Associated Press, is similar to New York’s in that it considers intoxicated victims of rape or sexual assault to be mentally incapacitated only if they became drunk or drugged without their knowledge or consent. There are 25 states, and Washington, D.C., in which whether the victim became intoxicated voluntarily or involuntarily isn’t a factor. Six states do not define that in state law.
Borowski said her bill will clarify the definition of consent to explicitly include situations where a person is unable to consent due to intoxication, regardless of whether the intoxication was voluntary or involuntary and align Pennsylvania with states that recognize incapacitation from alcohol or drugs as a valid basis for lack of consent.
"This reform is not about changing the burden of proof – it is about ensuring our laws reflect the principle that consent must be knowing, voluntary, and conscious," Borowski said. "No one should be able to exploit another person's impaired state to commit sexual assault without full accountability under the law.