The Cornell University case in Ithaca, NY involves a student who was so incapacitated that she was incapable of consenting to sexual activity. This matter raises a fundamental question about sexual assault law:
What happens when a person becomes so intoxicated that they are incapable of making a meaningful decision about sexual activity?
A person can reach a level of intoxication at which they are unable to understand what is happening, evaluate their choices, or understand the consequences regarding sexual activity. Yet under New York law, the legal protection available to an incapacitated person can depend on how that person became intoxicated.
That distinction exposes a larger problem – one that demonstrates why defining consent itself is so critical.
When the Law Focuses on How Intoxication Happened
New York sexual offense law recognizes circumstances in which a person may be considered unable to consent because of mental incapacity. But the statutory framework distinguishes between intoxication caused:
1. without a person’s consent, and
2. intoxication that results from voluntarily consuming alcohol or drugs.
This can create a troubling legal gap, and a loophole that offenders can easily slide through.
If drugs or alcohol were administered to someone without their consent and rendered them mentally incapacitated, the law can recognize that incapacity.
But when a person voluntarily consumes alcohol or drugs and subsequently becomes so intoxicated that they are incapable of consenting, that intoxication does not necessarily provide the same legal protection on that basis alone.
The distinction may focus the legal inquiry on how the person became incapacitated, rather than beginning with the more fundamental question:
Did this person actually consent to the sexual activity?
Choosing to Drink Is Not Choosing to Have Sex
This distinction is critical.
Choosing to consume alcohol is one decision.
Choosing to engage in sexual activity is another.
Intoxication is not consent.
A person does not agree to sexual activity simply because they agreed to drink alcohol or consume another substance. And voluntarily becoming intoxicated should not itself be treated as evidence that a person agreed to sexual activity that occurred afterward.
The Cornell case brings this issue into sharp focus because it involves allegations concerning a student who was reportedly so intoxicated that she was incapable of consenting to sexual activity.
The legal question should not end with determining how she became intoxicated.
It should also ask whether or not consent was present.
The Bigger Problem: New York Penal Law Does Not Define Consent
At the center of this issue is an even broader concern:
New York’s Penal Law still does not provide a general statutory definition of consent in its General Law or its sexual-offense provisions.
Instead, the law largely operates through circumstances in which a person is legally deemed incapable of consenting and through the statutory requirements of particular offenses.
That structure can produce an important difference between two questions:
Was the person legally incapable of consenting under one of the circumstances specifically recognized by statute?
and –
Was there actually consent?
Those questions are not the same.
A Consent Standard Changes the Question
Creating a clear legal definition of consent would give courts, prosecutors, defense attorneys, juries, survivors, and the public a common standard against which sexual conduct could be evaluated.
Rather than relying primarily on whether a person fits within a particular statutory category of incapacity, the law could directly address the central issue:
Was there a freely given, knowledgeable and informed agreement by a person with the capacity to reason?
A clearly defined consent standard could help address gaps created when the law focuses on categories of incapacity without separately defining what legally valid consent requires.
It would not eliminate the need for careful examination of evidence in individual cases. Nor would defining consent automatically determine whether a crime occurred. The prosecution would still have to prove the elements of the charged offense beyond a reasonable doubt.
But it would give the law something it currently lacks: an express benchmark for determining what consent is.
Close the Loophole. Define Consent.
The Consent Awareness Network advocates for a consent standard summarized as #FGKIA:
Freely Given, Knowledgeable / Informed Agreement by a Person With the Capacity to Reason.
The principle is straightforward.
The question should not simply be whether someone falls within a narrowly defined category of people legally incapable of consenting.
We must also be able to ask:
Was consent actually present?
Cornell University is located in New York State. YOU can support creating a consent standard in New York State’s law – sign & share the petition: l.ead.me/ConsentPetition.
