In September 2026, lawyers for Jane Doe, a former Cornell student, filed a civil complaint seeking to hold Cornell, her sorority, the Chi Phi fraternity, and other individuals responsible for facilitating what the complaint describes as a brutal 2024 drugging and “gang rape” by seven Chi Phi members. The complaint attracted press attention and ignited a firestorm of condemnation, especially toward the male students now referred to as the “Cornell Seven.” Particularly outrageous was the revelation that during a sexual encounter with Doe, Johnathan Newell sent a text to the fraternity’s Snapchat group announcing “free pussy,” allegedly prompting other men to enter the room and engage in sexual activity with Doe. Responses in the chat expressed glee at their fellow student being relegated to a body part ripe for abuse.

Yes, it is easy to understand the vitriol toward the men and fraternity culture in general. To readers outside the United States, the distinctly American tradition of organizing college life around sex-segregated groups with Greek-letter names and a mandate to get wasted must seem exotic and bizarre. This saga has renewed calls to consign these high-risk cultural relics and sites of concentrated toxic masculinity to the dustbin of collegiate history.

But outrage has also become a demand for stronger criminal laws. In the U.S., there is another cultural tradition in which the media breathlessly cover crime allegations, especially ones featuring relatively privileged white women subjected to sexual violation, prompting the outraged public and politicians to demand harsher laws and enforcement. For well over a decade, progressives have critiqued U.S. mass incarceration and media-driven criminal lawmaking. But when the story involves sexual assault, the call to get tough on crime crosses party lines, and liberals can become forceful prosecutorial voices. Democratic Governor Kathy Hochul called on the legislature to strengthen the criminal law and close the “loopholes” that permit men to sexually victimize voluntarily intoxicated women with impunity.

This demand for expanded criminal liability is bound up with a familiar sexual binary: either intoxication deprived Doe of agency from the beginning or her initial agreement to a threesome with Newell and Matthew Ingalls disqualifies her from legal protection. Missing is the reality, present in most cases, that victims can consent to some sexual activity and be assaulted during other parts of the encounter.

The Decision Not to Prosecute

The sense that New York’s law is currently too weak to hold offenders accountable can be traced primarily to Tompkins County District Attorney (D.A.) Matthew Van Houten’s decision in 2024 not to prosecute any of the men. (Cornell did discipline the men, including expelling Ingalls and Newell.) In the wake of Doe’s complaint, the D.A. issued a defensive response insisting that the facts alleged in her six-page statement to the police simply “do not constitute a crime.”

The excerpts provided by the D.A., however, describe both apparently consensual sexual activity and potentially criminal conduct. Doe described wanting to hook up with Ingalls, to whom she was attracted, and initially being “pretty OK with having this threesome” with him and Newell. She rated her intoxication at five or six out of ten when the sex began. But after Ingalls fell asleep, Newell repeatedly reached for her vagina, and she repeatedly swatted his hand away. Later, she rejected a proposed foursome by saying “Hell no!” She hid under the covers when more men entered and recoiled after Diego Sarabia grabbed her face and kissed her. After consuming ketamine, she described herself as “extremely high” and eight out of ten intoxicated. Ingalls and Winston Lee then “ushered” her into another room, where the three had sex. She could not recall how that intercourse began.

Consent, Intoxication, and New York Law

Current New York law defines rape to include forcibly compelling sex, imposing sex on a person who has clearly expressed nonconsent, and engaging in sex with a person who is “physically helpless,” meaning physically unable to communicate unwillingness. Voluntary intoxication can produce that condition. A person need not be unconscious to be helpless, and whether an intoxicated person meets the threshold is a question for the jury. The code also criminalizes forcible and nonconsensual sexual contact.

Doe’s account therefore raised issues under existing law about unwanted sexual contact, her expressions of unwillingness, and her eventual level of intoxication. These questions required further investigation, not a categorical declaration that the account described no crime. Yet Van Houten treated the statement as describing continuously “voluntary, conscious, and consensual” sexual activity that “objectively prevent[ed] the filing of criminal charges.”

To be sure, prosecutors retain discretion to decline cases that they cannot prove beyond a reasonable doubt. This case is far from a slam dunk, especially given that Doe subsequently reassured Newell that “non[e] of the sexual stuff was illegal and honestly i really liked being w u and [Ingalls] . . . Our body our choice.” A couple of weeks later, however, she told him, “let’s be clear that 90% of what happened that night was not consensual.” In a free society, we should want prosecutors to exercise restraint when evidence is weak, especially for sex crime charges that produce heightened emotions and trigger some of the most draconian penalties in the harsh American penal system. But Van Houten denied exercising discretion at all. He insisted that the law alone compelled his conclusion, helping transform criticism of his decision into a demand to change the law.

Consent to One Act Is Not Consent to All

The law did not require Van Houten to treat Doe’s initial consent as consent to everything that followed. The manosphere version of that argument is that Doe was a “slut,” a perpetual consenter, because she agreed to the threesome. Yet it is well established that consent to one sexual activity and to one person is not consent to everything and everyone. Instead of emphasizing this point, some Doe supporters have insisted that she could not have consented to anything, including the initial threesome. That is also the premise of her lawsuit. But this response tacitly accepts the “slut” discourse by making Doe’s protection depend on intoxication having prevented her from ever being a sexual agent. Doe herself described the binary, recalling reading an account that she was “gang raped” and thinking, “That’s the first time I had ever heard the narrative change that I wasn’t a whore and that I was assaulted.”

Currently, New York draws the line at which sex with a voluntarily intoxicated person becomes a crime at helplessness. In calling for the closure of the intoxication loophole, do Hochul and others mean to move that line far enough to treat Doe, despite her apparently lucid and thoughtful demeanor, as incapable of consenting to the initial threesome because she had been drinking? The governor’s demand, after all, is linked to the case. Other states specify that the intoxicated person must lack the ability to “appraise” or “control” their conduct, although the question remains whether this includes being drunk enough to make bad decisions. The recently revised Model Penal Code makes the threshold more concrete, prohibiting sex with someone who is “passing in and out of consciousness,” a state that can also satisfy New York’s current helplessness standard.

The Push for Harsher Sex-Crime Laws

Hochul wants to change New York’s intoxication standard, although it is not clear to what. Such a change should not be driven by media anger or presented as merely closing a loophole. Moving the line has the potential to substantially expand criminal liability, which will particularly impact college students who, studies show, frequently drink to facilitate sex. Once a person meets the applicable incapacity threshold, even an enthusiastic “yes” cannot supply legally effective consent. The defendant’s own drunkenness is also generally not a defense.

Ingalls’ claim that Doe raped him while he was in a state of drunken helplessness has garnered jeers. It appears utterly disingenuous, portraying the apparent proponent of the sex as the unassuming victim of a sodomitical rape. But this highlights the exact problem with broad intoxication rules: it does not matter who was more enthusiastic about the sex, whether they would have consented if sober, whether they enjoyed the incapacitated sex, or how they felt about it afterward. It only matters that the person was sufficiently intoxicated and the other person knew or should have known they were so intoxicated. The law does not and cannot reflect the gendered assumption that frat men take pride in their barely lucid sexual experiences. If both parties are sufficiently intoxicated, each is a victim and a perpetrator, regardless of comparative eagerness or post-event feelings.

I understand the temptation to counter the characterization of Doe as “complicit” in the threesome by denying her capacity to consent to it. But we should challenge the discourse that abandons and stigmatizes victims when they consent to some sex, even or especially when that sex is unconventional. Broadening intoxication-based liability grants prosecutors potentially sweeping discretionary power over sex, power likely to be exercised primarily against the “usual suspects” rather than the elite. And continuing to make protection depend on a lack of sexual agency reinforces the gendered cultural mores that drive young people to use alcohol to justify their desire in the first place. It maintains the pernicious distinction between non-agentic good girls to be protected and sexual bad girls to be denigrated.