This story was originally reported by The 19th.

The reopened criminal investigation into an alleged gang rape at Cornell University has sharpened scrutiny on voluntary intoxication laws, which make it harder to protect assault survivors if they chose to drink alcohol or use drugs at the time of the attack. 

A former Cornell student identified as Jane Doe said she arrived intoxicated at the Chi Phi fraternity house in October 2024. In a civil lawsuit filed in September, she said that she was then drugged and sexually assaulted by multiple fraternity members while incapacitated. 

But voluntary intoxication laws, which are in place around the country, say that if the person who was assaulted chose to become intoxicated, they are capable of consenting to sex, so sexual assault laws do not apply. The county’s district attorney, who announced Monday his office would reopen an investigation into the alleged assault, cited New York’s laws around intoxication and consent in explaining why he initially did not pursue criminal charges. These laws are in place in states around the country. 

Here is how these laws work and how they affect sexual assault prosecutions.

What are voluntary intoxication laws?

Individual states handle sexual assault law differently. Most states say that being intoxicated may prevent someone from being able to consent to sex, but not all of them do. Without that explicit provision, it can be much harder to prosecute sexual assault that occurred when the person assaulted was drinking or using drugs.

According to the Associated Press, 19 states say that an intoxicated person is only considered incapacitated — and therefore unable to consent — if they were given drugs or alcohol without knowing. New York, where Cornell is located, is one of those states.

READ: The Cornell Rape Allegations and Lawsuit, Explained

That means that if someone chose to consume alcohol or drugs and then was sexually assaulted, it can be harder to pursue criminal charges.

“In these states where these laws are still persisting for some reason, they still want to continue to be holden to this notion that somebody who is inebriated deserves to be punished, or has it coming for them, so to speak,” said Dr. Chinmoy Gulrajani, a professor at the University of Minnesota Medical School who has studied these laws.

Which states have these laws? 

• Connecticut
• Delaware
• Florida
• Hawaii
• Indiana
• Kentucky
• Maine
• Mississippi
• Missouri
• New Hampshire
• New York
• New Jersey
• North Dakota
• Oklahoma
• Pennsylvania
• Tennessee
• Utah
• West Virginia
• Wyoming

How did this come up in the Cornell case? Has it come up in others? 

Tompkins County District Attorney Matthew Van Houten — who had authority to pursue criminal charges — cited New York’s voluntary intoxication law in explaining why he initially did not do so.

“Under New York State Law, ‘mental incapacitation’ occurs when a victim is rendered incapable of controlling her own conduct due to the administration of a drug without her consent,” Van Houten wrote in a statement released Monday. “The facts provided by Jane Doe’s statement do not allege that she was either rendered incapable of controlling her own conduct or that any drug was administered to her without her consent.”

This provision has come up in other cases. 

Last year, Texas lawmakers changed their definition of sexual assault to include voluntary intoxication based on the experience of a woman named Summer Willis, who said she was raped at a fraternity party 10 years prior after accepting a drink that she believes was laced. 

Prosecutors had said that because she accepted a drink, the incident would not, at the time, have been considered sexual assault.

What do we know about alcohol and sexual assault, including on college campuses?

Research shows that drinking alcohol can impair people’s ability to make decisions about or consent to sex. Studies have repeatedly found that in most sexual assaults, someone — the person who committed the assault or the person assaulted — consumed alcohol. The figure is higher for sexual assaults on college campuses. 

One paper, published in 2019 by Johns Hopkins University using data from the American Association of Universities, found that close to 80 percent of men or women who were assaulted said they had been drinking before the incident. About 60 percent of trans, genderqueer or nonbinary respondents said they had been drinking before. In most cases, the person who perpetrated the assault had also been drinking.

READ: Cornell’s Reckonings With Fraternities Haven’t Prevented Misconduct

People who have been drinking or using drugs can, in some cases, consent to sex. But broadly over the past decade, there has been a societal shift toward understanding that people who are more heavily intoxicated cannot do so, Gulrajani noted.

“With more, better sex education regarding consent, some guidelines have been set down about informed consent, especially when it comes to sexual matters,” he said. 

Have there been changes in sexual assault prosecutions?

It’s not clear what consequences that cultural shift regarding consent has had — including whether it has changed how sexual assaults are handled in the justice system. 

In fact, a paper published in 2022 in the Journal of the American Academy of Psychiatry and the Law noted that when someone was assaulted after being intoxicated, police and prosecutors are less likely to follow up with rape allegations. Conviction rates are lower than when the person assaulted was sober. 

“Gendered roles about consensual sex and rape myths, such as that intoxicated women are more sexually available than sober women, may alter a juror’s opinion about voluntary intoxication,” the authors of that paper wrote.

But laws are starting to change. In the past five years, at least three states — Minnesota, Michigan and Texas — have changed their laws so that they do not differentiate based on whether someone had voluntarily become intoxicated. Those changes have largely been the result of public scrutiny after high-profile cases of sexual assault, such as in the Texas case.

Bills have been introduced in other states to make similar changes, Gulrajani said. In New York, legislation has been put forth every year since 2019 to make it easier to prosecute these cases. It has never passed. But the attention on the Cornell case could spur action, he said.

“The court of public opinion is the most consequential for politicians and legislatures,” he said.