‘Cornell 7’ case casts spotlight on NY’s ‘voluntary intoxication’ loophole — which doesn’t protect rape victims who drink, take drugs on their own

An antiquated New York law that shields rapists who target intoxicated victims is under renewed scrutiny in light of the “Cornell 7” case — but Assembly Democrats have long opposed a proposal to close the legal loophole, with one even referring to it as the “ruining drunk sex bill,” The Post has learned.

The “voluntary intoxication loophole” refers to how current state law doesn’t cover rape victims who chose to drink or get high themselves, even if it means they were too incapacitated to consent later.

“Getting drunk should not be an invitation to getting raped but in the current law, it pretty much is,” state Assemblyman Jeffery Dinowitz — who has backed a bill that would change the law since 2019 — told The Post.

“We originally refer to it as a loophole, in fact it is more than a loophole, that’s why we refer to it as the ”voluntary intoxication exclusion.’ Sexual assault victims who are voluntarily intoxicated, there’s virtually no chance that they are going to get justice,” he said.

Tompkins County District Attorney Matthew Van Houten cited current law when defending why he didn’t “independently investigate” a Cornell University’s student’s 2024 report to campus police that she had been gang raped at a fraternity house.

But the DA admitted that Dinowitz’s proposed “Bill A101” would have required his office to further investigate the report from the now-former student, identified only as Jane Doe — who recently filed a lawsuit against the Ivy League school, prompting Van Houten to reopen a probe.

“Yes, we would have, under the law, had to investigate further and determine what other individuals knew or should have known about her mental state,” Van Houten told The Post.

“Because if she doesn’t say ‘no’ during the events or if she is not physically helpless or physically unconscious, then the law in New York as it is written now indicates that she consented.”

The proposed bill aims to protect a victim who, under the influence of a drug or substance, rendered themselves “temporarily incapable of appraising or controlling such person’s conduct.” 

Here’s the latest on the Cornell frat probe:

• Grim new details revealed in Cornell student’s account of alleged gang rape
• Cornell allegations get so much worse… | The Low Down
• Cornell’s handling of gang rape allegation is scaring away prospective students who had been set on attending
• Lawyer for ‘Cornell 7’ gang rape accuser reveals his plan after DA says it will reopen case

But the Democratic-controlled state Legislature has repeatedly failed to close the loophole, and while a version of Dinowitz’s bill passed the state Senate 60-0 in June, it never made it to a floor vote in the lower chamber.

Advocate Chris Lake, a NAACP member and co-chair of the Justice Without Exclusion Coalition said that Assemblyman Pat Burke (D-Buffalo) even admitted to him “me and my colleagues call this the ruining drunk sex bill.” 

Lake said he had pulled Burke aside on May 19 to try and sway him into supporting the bill — and that he and another advocate were stunned by the pol’s “off the rip” response. 

Burke’s spokesperson confirmed that the assemblyman had a “frank discussion with these advocates” and “relayed how the bill had become colloquially known and how opponents of the measure were likely to characterize it during what would certainly be a contentious floor debate.”

But he said that in light of the Cornell scandal, Burke plans on voting “yes” if the bill is brought to a vote by Assembly Speaker Carl Heastie (D-Bronx) in the upcoming legislative session.

Heastie on Wednesday announced the formation of a special “working group” to consider legislation in reaction to the Cornell case.

“The allegations being reported out of Cornell University are truly horrifying. We want to do everything we can to ensure victims of sexual assault see justice served,” he said.

Jane Manning, a former sex-crimes prosecutor and director of the Women’s Equal Justice Project, said the Cornell case was an opportunity for legislators to see where the law falls short — and remedy it.

“New York State law makes it more difficult than it should be to prosecute a case like this because it defines rape so narrowly that it fails to protect a severely intoxicated person from sexual assault unless the person is truly unconscious,” Manning said.

“This is a glaring omission that advocates have been pointing to for decades.”

Erin Murphy, professor of civil liberties at New York University School of Law, said that had the legal standard been amended as proposed, there would have been a clear cut case for prosecutors to bring rape charges back in 2024.

But she said that the language of the proposed bill could still be tighter.

“The problem with ‘appraising or controlling’ is that it’s a pretty elastic standard,” she said, but added, “It does do something very important as compared to the current law. 

“It makes space for someone to be conscious and yet not capable of expressing unwillingness or in my preferred formulation, of expressing willingness.”

— Additional reporting by Vaughn Golden