An alleged rape by seven men of a female student at a Cornell University fraternity house has grabbed national headlines, not only for the lurid details of the case but also for the university’s muted response and a New York law that in many cases voluntary intoxication cannot be used to establish lack of consent.
Indiana has a similar law on the books, as do 17 other states.
The plaintiff in the Cornell case, identified in court filings as Jane Doe, said that despite agreeing to some sexual acts, she was incapable of consenting after heavy drinking and ingesting ketamine, a dissociative drug.
Although New York and Indiana have voluntary intoxication laws, Jody Madeira, a professor at the Maurer School of Law at Indiana University, said there’s a difference between the law on the books and the way it’s applied.
“That statute doesn't really define what mentally disabled or deficient means,” Madeira said. “If the statute doesn't say what mentally disabled or deficient means, then cases will.”
In the 2024 case Montgomery v. Indiana, a defendant attempted to use the state’s voluntary intoxication law to avoid sentencing for rape, but the court ruled against him since although the victim willingly consumed alcohol, she was so intoxicated that it qualified as mental disability.
“In that sense, New York's standard is very similar to Indiana's, where they look at the degree of inebriation and the victim's actual behaviors and capacities,” Madeira said.
Proving that a victim lacks capacity to consent is difficult in court,despite research that alcohol impairs people’s ability to make decisions about sex.
Cornell’s internal Title IX investigation led to two expulsions based on the university’s standards around the definition of rape; namely, that affirmative consent was lacking.
India Thusi, a professor of law at Maurer and senior scientist at the Kinsey Institute, said that while Title IX also has a preponderance of evidence standard, criminal rape cases are treated differently.
“It's not so much that under criminal law there's a ‘loophole’; it’s that we have more restrictive standards because the penalties are very different,” Thusi said. “The highest penalty that Cornell would be able to implement would be an expulsion from school, whereas with criminal law, it could be life imprisonment in certain circumstances.”
That’s one of the reasons why Doe is also pursuing a civil case against the university, the fraternity members and a local bar, parallel to the criminal investigation and Title IX proceedings.
“We're already with these three cases dealing with three different standards of proof, three different courses of action that might come into being relevant,” Thusi said. “It's really a very complicated matter, although it's being discussed in a way where everything is being collapsed into each other.”
IU’s Title IX policy says an individual is incapable of consenting “if they are unable to understand the facts (…) of the situation due to drugs, alcohol, a mental disability, being asleep or unconscious, or based on their age,” but says that “intoxication and/or impairment is not presumptively the equivalent to incapacitation.”
Like Cornell’s policy, it also says consent must be affirmative and clearly communicated, and sexual misconduct may require the university to notify law enforcement if it’s criminal in nature.
Sexual violence in Greek societies has been acknowledged at IU as elsewhere. The IU Panhellenic Association, a student-led organization, paused all sorority and fraternity events for three weeks last spring following several fraternities being placed on cease and desist by the university for infractions including sexual harassment.
