In a late-September statement, Tompkins County District Attorney Matthew Van Houten defended his office and explained its decision. After summarizing Jane Doe\u2019s signed, six-page statement to Cornell\u2019s police department, Van Houten said it did not reflect the lack of consent necessary to prove sexual assault under New York\u2019s rape and sexual assault laws.<\/p>\n
Van Houten noted that in New York, a victim is considered mentally incapacitated only when she is \u201cincapable of controlling her own conduct due to the administration of a drug without her consent.\u201d Although Jane Doe\u2019s statement reflected \u201cexcessive and illegal drug use by multiple participants,\u201d including Doe herself, her statement did not reflect that \u201cany drug was administered to her without her consent,\u201d Van Houten wrote.<\/p>\n
Put another way, because his office understood that Jane Doe willingly drank and took ketamine, the district attorney said he could not prove, consistent with New York law, that the alleged assault was nonconsensual.<\/p>\n
Unsurprisingly, that feature of New York law \u2014 also known as the \u201cintoxication loophole\u201d \u2014 has become a focus among those seeking justice for Jane Doe. Earlier this month, Gov. Kathy Hochul, who appointed New York Attorney General Letitia James<\/a> to handle any further criminal investigation, also publicly pledged to work with state legislators to close that gap.<\/p>\n \u201cIf someone is too intoxicated to consent, it should not matter whether they chose to use drugs or alcohol,\u201d Hochul said. \u201cVoluntary intoxication is not a license for sexual assault or gang rape.\u201d<\/p>\n But the so-called intoxication loophole is not a newly identified problem. Sexual assault survivors, advocates and their allies in the New York state Legislature have been pushing to close it since long before Jane Doe enrolled at Cornell.<\/p>\n \u201cIt\u2019s a shame it took what happened at Cornell becoming national news for this bill to receive the attention it has always deserved.\u201d<\/p>\n New York State Sen. Natalia Fernandez<\/p>\n Law enforcement officials have also advocated changing the law. For example, in an op-ed published months before Jane Doe\u2019s alleged October 2024 assault<\/a>, Manhattan District Attorney Alvin Bragg and NOW-NYC President Sonia Ossorio lamented that the loophole presents an \u201cunjustly high bar to hold perpetrators of rape and sexual assault accountable\u201d and suggested it exacerbates the significant underreporting of sexual assault.<\/p>\n Bragg and Ossorio also argued that the loophole \u201cignores the reality of how sexual assault and rapes happen,\u201d as roughly 80% of sexual assault cases involve an accused and a survivor who know each other, and in 90% of those cases, alcohol is involved.<\/p>\n Asked whether he still supports closing the intoxication loophole, Bragg\u2019s office provided a statement to MS NOW reiterating that the loophole should be eliminated \u201c[d]riven by what we see in our own practice.\u201d Whether a person is drugged without their knowledge or becomes intoxicated voluntarily, Bragg maintains, \u201cthe person is incapable of meaningful consent, and our laws should clearly recognize both as rape.\u201d<\/p>\n His counterpart in the Bronx, Darcel Clark, has voiced similarly strong support for closing the loophole, telling MS NOW in a statement, \u201cVoluntarily drinking alcohol never gives anyone permission to exploit those who are too intoxicated to consent. If the evidence shows someone was incapable of communicating or consenting, the law should recognize their vulnerability.\u201d<\/p>\n At least one chamber of New York\u2019s Legislature agrees. Earlier this year, the New York State Senate passed legislation<\/a> to close the intoxication loophole, as it had in 2020<\/a>, 2021<\/a>, 2023, 2024<\/a> and 2025<\/a>. Yet versions of the bill have stalled in the New York State Assembly. The current version of the bill is co-sponsored by nearly 100 members<\/a>, nearly two-thirds of the entire body. The 2026 session of New York\u2019s Legislature ended June 5<\/a>.<\/p>\n State Sen. Nathalia Fernandez, who has sponsored the bill in her chamber for the past four years, told MS NOW, \u201cIt\u2019s a shame it took what happened at Cornell becoming national news for this bill to receive the attention it has always deserved.\u201d<\/p>\n But it has languished in the Assembly since January 2025<\/a>. Substantially identical proposals also failed to pass the Assembly in 2023-24<\/a> and in the 2021-22 session<\/a>, despite unanimous committee votes.<\/p>\n The question is who does not want the legislation to pass.<\/p>\n Aside from Assemblywoman Latrice Walker, who has publicly explained her opposition<\/a> to existing legislation as a function of \u201ccautio[n] about the creation of new laws and our duty to preserve due process protections,\u201d most alleged opponents of the bill have not gone on record.<\/p>\n Battle in the state Legislature<\/p>\n As a Duke University undergrad, Lizzie Asher says she was sexually assaulted by a teacher whose recommendation she was seeking. Now a Harvard-trained lawyer, she co-chairs the Justice Without Exclusion Coalition, a group of nearly 30 services and advocacy organizations that is leading the fight to close the intoxication loophole in New York.<\/p>\n Asher pointed to several reasons why that has not yet happened.<\/p>\n First, she said, Assembly Speaker Carl Heastie is \u201cvehemently against any legislation that would create \u2018new crimes.\u2019\u201d Asher finds that rationale unsatisfying. \u201cRape already exists as a crime, and you are excluding a subset of victims because you are blaming them for what they did before,\u201d she said.<\/p>\n She also noted that the Democratic Socialists of America, which now counts seven members in New York\u2019s Assembly, has an across-the-board decarceration stance, \u201cwhich aligns perfectly with Heastie\u2019s.\u201d<\/p>\n A spokesperson for the speaker\u2019s office did not respond to MS NOW\u2019s requests for comment. In May, The New York Times reported<\/a> that Heastie\u2019s spokesperson had declined to state the speaker\u2019s position on the bill.<\/p>\n Lauren Leader, CEO of All In Together, a nonpartisan women\u2019s civic education and leadership organization, also feels Heastie and DSA-affiliated members are responsible for the continued existence of the loophole. \u201cIt\u2019s clear that Assembly leadership did not think the intoxication loophole was sufficiently important to prioritize,\u201d Leader said.<\/p>\n But she also believes members associated with the DSA \u201chave outsized power to block votes they don\u2019t agree with even when it\u2019s wildly outside the mainstream.\u201d<\/p>\n Although some DSA-affiliated members, including state Sen. Julia Salazar and Assemblymember Emily Gallagher, supported efforts to close the loophole in prior years, Asher told MS NOW that more recently, DSA members have declined to sponsor the legislation. She noted that when now-New York Mayor Zohran Mamdani was in the Assembly, she attended a meeting with his staff during which they openly told advocates he would not sponsor the bill.<\/p>\n Asked about the mayor\u2019s position on legislation to close the intoxication loophole during his tenure in the Assembly and about that meeting specifically, as well as his current position on pending legislation, Dora Pekec, a senior spokesperson for the mayor, sent MS NOW a statement largely about Jane Doe\u2019s \u201cdeeply disturbing and gut-wrenching\u201d case.<\/p>\n She added, \u201cThe Mayor supports a full and thorough investigation into not only what happened to this survivor, but into how our laws and institutions must better protect all survivors.\u201d<\/p>\n Asher also pointed to Gabriella Romero, a first-term assemblymember who, according to Asher, scuttled the bill when, in 2025, it passed a key Assembly committee.<\/p>\n Romero\u2019s representatives did not respond to MS NOW\u2019s request for comment.<\/p>\n Others, however, lay the blame primarily on Heastie.<\/p>\n One source familiar with the bill\u2019s status and history spoke to MS NOW on the condition of anonymity to preserve relationships with legislators, and especially Heastie. They explained that often, assemblymembers will publicly sponsor a bill, only to privately oppose it and ask the speaker to help ensure it does not reach the floor.<\/p>\n But here, the person said, the Assembly bill to close the intoxication loophole has the votes to pass. Heastie is known to have a strong and ideological opposition to measures he fears would increase the criminalization of Black and brown men.<\/p>\n In 2024, in defending his refusal to increase sentences for those who attack retail workers, Heastie told reporters<\/a>, \u201cI just don\u2019t believe raising penalties is ever a deterrent on crime.\u201d<\/p>\n Former state Sen. Alessandra Biaggi, who sponsored the Senate version of the bill before leaving the Legislature in 2022, experienced Heastie\u2019s opposition similarly. \u201cI went toe to toe with Heastie many times about this,\u201d she said.<\/p>\n \u201cIt was heartbreaking because there were new cases every year that could not be prosecuted because of the loophole.\u201d<\/p>\n Former New York State Sen. Alessandra Biaggi<\/p>\n \u201cWhen I said to him, \u2018We have to do this,\u2019 he told me, \u2018The [public] defenders don\u2019t want this,\u2019\u201d she said.<\/p>\n \tMore articles<\/p>\n The New York State Defenders Association submitted its \u201cstrong opposition\u201d to lawmakers. In a letter obtained by MS NOW, the organization stated that the legislation would \u201ccreate a category of sex crimes that are unconstitutionally vague because it fails to give adequate notice of what conduct is prohibited,\u201d adding it would lead to \u201cunjust treatment and arbitrary prosecutions and convictions that have lifelong consequences.\u201d<\/p>\n Similar memos have been circulated by the National Association of Criminal Defense Lawyers and other New York-based legal services organizations.<\/p>\n Biaggi also said Heastie told her \u2018the caucus will not go for it,\u2019 referring to a coalition of Black, Asian and Latino legislators. Biaggi said Heastie explained he would not expand the criminal code to enable false accusations against Black and brown men. When Biaggi countered that false reports of rape are extremely rare statistically, she says Heastie remained unmoved.<\/p>\n \u201cHe heard every reason and rationale, and he didn\u2019t want to do it,\u201d she said. \u201cIt was heartbreaking because there were new cases every year that could not be prosecuted because of the loophole.\u201d<\/p>\n But Biaggi does not blame just Heastie. She says she thinks Jeffrey Dinowitz, a Heastie ally who has served in the Assembly for decades and first introduced the bill to fix the loophole, could convince Heastie to let it pass if it was important enough to Dinowitz, but that apparently, it has not been.<\/p>\n Another source familiar with negotiations over the bill asked not to be named for fear of alienating its advocates. But the person echoed Biaggi\u2019s criticism of Dinowitz, calling him a \u201cpaper tiger.\u201d The person said Dinowitz was asked last year to relinquish the sponsorship of the bill to a woman of color to better counter the concerns about the effect on Black and Latino men. He refused.<\/p>\n That source added that Dinowitz chairs the Assembly committee with jurisdiction over his bill, but his office has claimed they are powerless to schedule a vote without permission from the speaker\u2019s office.<\/p>\n Reached for comment, Dinowitz called Biaggi\u2019s characterization \u201cridiculous\u201d and defended his \u201cdiligent and tenacious\u201d stewardship of the bill. Dinowitz also said he was never asked to cede sponsorship of the bill, nor would he do so.<\/p>\n \u201cMost of my colleagues are smart enough to analyze a bill without caring about the gender, race or ethnicity of the sponsor,\u201d Dinowitz said.<\/p>\n He acknowledged having a longstanding, close relationship with the speaker but said he \u201cwould be appalled if the speaker brought bills to the floor based on personal relationships.\u201d<\/p>\n Plus, he added, Biaggi \u201cdoes not know what conversations I\u2019ve had with the speaker.\u201d<\/p>\n \u201cThe speaker has never once said to me he opposes the bill. He has said they don\u2019t have quite enough votes yet,\u201d adding, \u201cWe want to make sure we have the votes to pass the bill from the Democratic majority.\u201d He also noted that while the speaker controls the scheduling of the votes, there is little point in doing so if the bill lacks support.<\/p>\n But according to memoranda of support obtained by MS NOW, a broad array of organizations and individuals supported the most recent iteration of the bill. The supporters include multiple labor unions, including the AFL-CIO; multiple organizations representing and providing services to survivors of domestic violence and sexual assault; and even a group of Jeffrey Epstein\u2019s survivors and their family members.<\/p>\n Can the loophole be closed?<\/p>\n Yet for all the power centralized in the speaker\u2019s hands, the New York Legislature has met the moment when confronted with other, opinion-shifting tragedies, Biaggi said.<\/p>\n She recalled that in the wake of George Floyd\u2019s death, the Legislature overcame decades of opposition from law enforcement-related groups across the state and repealed the section of New York law that kept police disciplinary records secret. While crossing law enforcement interests had once been unthinkable for Democrats and Republicans alike, the moment became too big for the Legislature to ignore.<\/p>\n She also predicted Jane Doe\u2019s case could similarly change the debate about the intoxication loophole.<\/p>\n On Sept. 30, in the wake of the public outcry over Jane Doe\u2019s case, Heastie formed a \u201cworking group\u201d<\/a> to assess \u201cissues and perspectives surrounding New York\u2019s sexual assault statutes.\u201d That group includes Romero, who told an Albany-based TV station she would approach that work from her \u201clived experience\u201d<\/a> as a trial lawyer and public defender, as well as Dinowitz.<\/p>\n \u201cThe allegations being reported out of Cornell University are truly horrifying,\u201d Heastie said. \u201cThis working group includes a broad cross-section of experience and viewpoints, and I am confident they will thoughtfully consider how best to move forward so that New York\u2019s laws are as strong as possible.\u201d<\/p>\n Supporters of closing the loophole, including Bragg and Ossorio, have countered that the legislation currently on the table \u201cappropriately protects the rights of the accused\u201d by criminalizing those encounters where the alleged offenders \u201cknow \u2014 or reasonably should have known\u201d that the victims were incapable of consent.<\/p>\n Heastie has implied that any change to New York\u2019s law would not happen this year, stating that his working group is expected to develop \u201clegislative recommendations<\/a> . . . before the end of the year in order to allow for their full consideration in the 2027 legislative session.\u201d<\/p>\n But will the new year actually bring something new or more of the same?<\/p>\n Two sources familiar with the working group told MS NOW that it already met last week and is expected to meet again this week.<\/p>\n Assemblymember Rebecca Seawright, a co-sponsor of the bill, compared this moment to the aftermath of the Supreme Court\u2019s overturning of Roe v. Wade. The court\u2019s Dobbs decision, she told MS NOW, was the impetus needed to finally pass New York state\u2019s Equal Rights Amendment.<\/p>\n Referencing the public reaction to Jane Doe\u2019s case, Seawright said, \u201cNow is the time to get it done.\u201d<\/p>\n Dinowitz echoed Seawright\u2019s optimism.<\/p>\n \u201cI believe we\u2019re going to get the job done. My job is to get more votes.\u201d<\/p>\n \t\t\t\t\t\t\t
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