The backlash over the handling of a woman's sexual assault complaint against a member of a Cornell University fraternity highlights what experts see as problems with current sexual assault and alcohol laws in several U.S. states.
The woman, who goes by "Jane Doe" in legal documents, filed a lawsuit last month, alleging that she was drugged and raped by several men at Cornell University in New York State in 2024.
Doe said she had been drinking alcohol earlier in the night of the alleged incident and then went to a fraternity house. She alleged that multiple men pressured her to take ketamine, kept her drinking, and later advertised a "free" sexual encounter with her in group messages.
She said she was intoxicated during the alleged incident and was unable to give valid consent.
Under current New York State law, if a person drinks or takes drugs voluntarily but does not become intoxicated or under the influence of drugs against his or her will, the law does not automatically determine that the person has lost the ability to consent to sexual activity.
The American media widely referred to this as the "voluntary intoxication loophole."
New York Governor Kathy Hochul said last week that "voluntary intoxication does not constitute a license for sexual assault or gang rape." She also said she would work with the state Legislature to close this "loophole."
But some experts believe there is a misunderstanding of the law and that the legislation does not prevent people who voluntarily drink or take drugs from bringing sexual assault charges. However, these people would need to prove that they were so severely incapacitated that they were unable to give physical consent, a higher threshold than simply being intoxicated.
This distinction reflects an ongoing debate in American society over how a person's ability to consent should be defined after drinking alcohol.
Former sex crimes prosecutor Dan Schorr told the BBC that New York state law still protects people who are sexually assaulted after voluntarily consuming alcohol or drugs.
"If a person is unable to consent or refuses consent because of alcohol or drugs, then any sexual activity with that person is non-consensual, regardless of whether the alcohol or drug intake was voluntary or involuntary," Shore said. Shore now also assists universities in reviewing sexual assault cases.
"I have prosecuted many people for sexual assault against voluntarily intoxicated people," he said.
"I got them convicted. They were jailed," he added.
What is "incapacitated"?
Some believe the problem with current law is that the legal threshold for deeming a person incapable of consenting to sex because of intoxication is set too high.
At least 19 states, including New York State, have adopted higher standards, requiring the person to be intoxicated to a certain level before being deemed incapacitated and unable to give consent.
New York state law states that a person cannot consent to sexual activity if he or she is "unconscious or otherwise physically unable to express unwillingness to perform the act."
Shore said the rule also applies to people who are so severely incapacitated by alcohol that they are unable to give consent.
But another legal expert interviewed by the BBC said such cases could be difficult to prove.
Mitchell Epner, a former prosecutor who has handled sex trafficking cases, said some prosecutors "may not bring charges, or the defendant may be acquitted because the person 'consented' while intoxicated but not completely incapacitated."
He said that in other states with lower legal thresholds, if a person is "impaired" or "significantly impaired", he cannot give valid consent; being too drunk to drive a car may be considered to have reached this level.
College campuses have different standards for consent than criminal laws, and Cornell does the same.
The school adopts the standard of "affirmative consent," which it defines as "the informed, voluntary, and joint decision of all participants to engage in sexual activity."
Silence or lack of resistance does not constitute consent, Cornell said.
Promote law revision
Epner supports a proposal to change New York state law to expand the scope of a finding that a person is incapable of giving consent due to intoxication. The New York State Senate has passed related bills several times, but the state House of Representatives has never brought it up for a vote.
The bill provides that a person cannot give valid consent if he or she is "temporarily unable to judge or control" his or her own behavior as a result of being under the influence of a substance and the other party knows or should reasonably know of the situation.
Pennsylvania has also tried to change laws to make it easier for drunk victims to prove they were sexually assaulted.
“If a person is too drunk to drive, he is too drunk to do anything else — you can fill in any verb you want,” Epner said.
State Rep. Lea Webb, whose district covers Cornell University, told BBC News that she and other lawmakers are pushing for relevant legislation and that the bill has gone through multiple revisions.
Current New York state law "puts the burden of proof on the victim," she said.
On the other hand, Shore and some criminal defense attorneys criticized proposals to change New York state's sexual assault laws.
The State Association of Criminal Defense Lawyers said in a statement to the BBC that New York State's current laws are adequate and that "defendants have been convicted of rape in cases where the victim was voluntarily intoxicated."
The group said the use of language such as "unable to judge or control one's behavior" is "too vague and difficult to enforce fairly," noting that the bill does not clearly state what level of intoxication constitutes an inability to engage in sexual activity.
