Since student journalists at “The Cornell Daily Sun” broke the news of the reported sexual assault that took place at Cornell University involving Jane Doe and seven members of Chi Phi fraternity, commentary about the case has taken over headlines and social media timelines. Amidst public reaction, Sunny Hostin found herself in the hot seat after some social media users took issue with her commentary explaining why the District Attorney initially chose not to pursue the case during an episode of “The View” on September 29.
Since the episode aired, a number of updates surrounding the case have emerged, including a heavily redacted 99-page report obtained by ABC News and NY Gov. Kathy Hochul’s office. While Hostin initially claimed that people were reporting the case “inaccurately” and “unfairly,” during the October 1st episode, the daytime talk show co-host affirmed that though she sees the case as “morally repugnant,” the problem is the New York laws she explained in the initial segment.
To understand the law and what comes next, theGrio spoke with Emily Sack, professor of law at Roger Williams University School of Law, and advocate Lauren Leader, co-founder and CEO of All In Together.
What does the New York state law say?
“For rape in New York, you have to prove as an element of the crime that the victim did not consent to the sexual act,” Sack explained. And there is more than one way to show that. First, she noted, “The prosecutor has to prove beyond a reasonable doubt that the victim said no, some version of no, that she did not want to have sex with this person.”
Another way to prove beyond a reasonable doubt that the victim said ‘no’ has to do with intoxication, which in the state of New York can become tricky.
“New York law is really difficult in terms of proving rape,” Sack says, “and that shows the weaknesses in New York law.”
Understanding New York’s voluntary vs. involuntary intoxication clause
While most consent trainings teach people that once a person is intoxicated or inebriated they are no longer able to give consent, New York state’s laws are a bit more complicated.
“Some states do not make a distinction as to whether it’s voluntary or involuntary,” Sack told theGrio. “However, in New York, they do make a distinction between the voluntary type of intoxication and the involuntary type of intoxication.”
Involuntary intoxication is “where somebody drugs you,” like in the classic example where a date rape drug is unknowingly put into a victim’s drink.
“With involuntary intoxication, they say that if somebody is incapacitated, which [New York law] defines as temporarily unable to appraise or control their conduct because of drugs or alcohol administered without their consent, that that can count as lack of consent,” she explained, reading directly from New York legislation.
However, voluntary intoxication is treated differently. If someone chose to drink or use drugs, Sack explains, the same incapacitation “will not count as lack of consent unless it gets to the stage where the victim is literally unconscious.”
“Under the current statute in New York, someone who is voluntarily intoxicated can still give consent,” Leader said, arguing that no other crime works this way. “If you stumbled out of a bar and you were drunk because you were drinking at the bar and someone robbed you, the law would never say, ‘Oh, that’s not a crime because you were drunk.’ But when it comes to rape in the state of New York, it does.”
Was Sunny Hostin right?
In short yes. Both, Leader and Sack underscored the validity in Hostin’s commentary surrounding New York state legislation.
“There is a distinction under New York law that Sunny Hostin was referring to, and that’s true, and I know it’s hard for people to understand. And there have been several attempts in New York to revise the law, but that is the current standard.”
“I am grateful to Sunny for amplifying what she rightly called out is a massive loophole in New York State law that is outdated and unacceptable,” Leader underscored. “It’s the first time that I think there’s real national consciousness about this giant gaping hole in the law.”
However, Sack did note that Hostin’s comments on September 29 did leave out some of the nuance in the case, particularly surrounding Jane Doe’s statements and “what the DA potentially could have found out if they had done more work.”
The law isn’t the only problem
According to Sack, a prosecutor doesn’t need proof beyond a reasonable doubt just to look into a case.
“Your job as a prosecutor at that stage is to fully investigate before you decide whether to go forward,” she said reflecting on Tompkins County, N.Y., district attorney, Matthew Van Houten’s failure to interview Jane Doe when he first received the case. “He never investigated further. He never interviewed her personally. My understanding is that she would have been happy to talk to him. So, to me, that was really a fault.”
“It may be that the limitations of New York law may ultimately have led to the same conclusion. We don’t know, though, because what we we don’t know because he never interviewed her. To me that was a big failing,” she added.
Leader calls it “an avalanche of failures—a failure of Title IX, a failure of appropriate investigation, a failure of the Cornell Police Department, a failure of the DA, and a failure of New York State law.”
Why hasn’t this law changed?
Leader says advocates have been pushing to close the loophole for years. Bills to remove the limitations surrounding voluntary intoxication have passed through the state Senate but have never reached the assembly floor.
On Wednesday, Heastie announced a working group to study the state’s sexual assault laws and make recommendations for the 2027 session. However Sack notes, “New York has two problems.” In addition to the changes surrounding voluntary, the professor of law explains how revisions to consent legislations are also being attempted.
“It has to do with the first type of lack of consent I mentioned, where the the prosecutor has to prove that the victim said no, because several jurisdictions have actually changed that standard to shift the burden so that the defendant has to show that there was an affirmative yes through words or action. So, in other words, instead of the default being consent where the prosecutor has to show a lack of consent in a situation, it’s the opposite. A defendant would have to show that there has to be some evidence that there was a yes or some kind of you know actions indicating yes.”
What now?
Cornell has said it will bring in outside counsel for an independent review, following Hochul’s call for one, which Leader argues should be the norm.
“No school should be investigating anything related to sexual assault without professional experts being involved,” she says. “All universities need to commit to hiring qualified outside professionals to investigate Title IX cases involving sexual assault.”
“This stuff is rarely black and white,” she added. “If you don’t have competent professionals who understand the trauma response, who understand the complexities of how these things manifest, you’re going to fail the victims again and again.”
