New York Gov. Kathy Hochul vowed to address a loophole in state law that makes it difficult to prosecute cases when a sexual assault victim willingly consumes drugs or alcohol.

Transcript

SCOTT SIMON, HOST:

This next story contains descriptions of sexual assault. New York Governor Kathy Hochul announced she is appointing state Attorney General Letitia James as special prosecutor to take over the alleged rape case at Cornell University. The governor also said her office will look into ways to change state laws that could change how such cases are prosecuted in the future. NPR's Jaclyn Diaz joins us. Jaclyn, thanks for being with us.

JACLYN DIAZ, BYLINE: Thank you.

SIMON: This story, of course, has been in the headlines all week. Please remind us of the circumstances surrounding them.

DIAZ: Yeah. This has been a fast-moving case. Each day brought new revelations. But to take a step back, in mid-September, a woman who goes by Jane Doe filed a lawsuit against Cornell University and seven men who she says brutally raped her two years ago. In her lawsuit and statement to police back in 2024, she said she was drinking the night of the alleged attack at a frat house. But she said she increasingly became too intoxicated to consent to sexual activity. And she says these seven Cornell students assaulted her over several hours. Local prosecutors said at the time they were not filing criminal charges. Tompkins County District Attorney Matthew Van Houten said, based on what he knew at the time, her case didn't meet the legal standards to pursue a criminal case.

SIMON: Just what are the legal standards in New York state?

DIAZ: Well, right now state law establishes a really high burden of proof for accusers to show they were physically helpless or otherwise unable to consent if they were raped. Under the law, a person may be found guilty of rape if they assault someone who is mentally disabled or too incapacitated to consent. Emily Miles is the executive director of the Alliance Against Sexual Violence. She says there's another key aspect to the law.

EMILY MILES: It generally requires that the intoxicating substance has been administered without the person's consent. And that's what leaves a serious gap when someone initially consumed a substance voluntarily but later became too impaired to consent.

DIAZ: And that's what allegedly happened in the Cornell case. The former student said she was drinking before her assault, but over the course of several hours, she became too intoxicated to consent. Miles said current law just doesn't reflect the reality of so many rape cases, which mirror the allegations in the Cornell case.

SIMON: What exactly does Governor Hochul propose to do about this?

DIAZ: Well, she's done a couple things this week. Like you said at the top, she appointed Attorney General Letitia James to take over the investigation from the local prosecutor. And Hochul says she wants to address those serious gaps in New York state law that led to Van Houten's decision not to pursue a criminal case.

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KATHY HOCHUL: It should not matter whether they chose to use drugs or alcohol. Voluntary intoxication is not a license for sexual assault or gang rape. Period.

DIAZ: And she says her office is exploring options.

SIMON: Is there momentum to get all of this done right now?

DIAZ: Well - so this is actually an issue that victim advocates like Miles and state lawmakers have been working on for a while. I spoke with New York state Assemblyman Jeffrey Dinowitz. He introduced a bill just this year that would have prohibited the use of a victim's intoxication as a defense in sex crimes when that victim can't really control or even make sense of someone else's behavior. But that measure didn't pass. He's hopeful, but any action likely won't happen until next year when the new legislative session starts.

SIMON: NPR's Jaclyn Diaz. Thanks so much for being with us.

DIAZ: Thank you.

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