As detailed allegations of a 2024 gang rape at Cornell University emerged last month, Summer Willis felt both horror and a sense of recognition.
There were fraternity brothers exchanging vulgar messages about the accuser on Snapchat, echoing what Willis says happened after she herself was assaulted in 2014. And there was a district attorney saying on television that state law had made filing charges difficult or impossible, just as Willis had been told years ago.
“I almost threw up,” said Willis, 32, who heads an eponymous foundation focused on sexual assault survivors. “This is literally what we’re working on.”
The Cornell case, Willis knew, could hinge on an obscure gap in sexual assault statutes around intoxication and consent in states across the country, something she has made it her mission to change.
New York law classifies rape as situations in which the victim clearly refused sex or was physically forced to submit to it. The same is true if the victim was unconscious or unable to communicate. The statute also covers instances in which victims were intoxicated against their will.
But it can be difficult for prosecutors in New York and at least a dozen other states to bring rape charges in situations in which victims were voluntarily drinking or taking drugs and say they were too intoxicated to consent.
In a civil suit filed last month, a former Cornell student identified as “Jane Doe” alleged that she was “plied with alcohol and drugs to the point of intoxication” at the university’s Chi Phi fraternity house and raped by several men over about seven hours on Oct. 19, 2024. Lawyers for some of the alleged perpetrators have denied those assertions.
Matthew Van Houten, the Tompkins County district attorney, issued a lengthy statement this week that cited the state’s law on intoxication and consent when explaining why he did not bring charges in 2024.
Advocates and legislators have tried since 2019 to close what they call New York’s “voluntary intoxication loophole” or “voluntary intoxication exclusion.” On Friday, New York Gov. Kathy Hochul (D) said she would move to amend the law early in the next legislative session.
“If someone is too intoxicated to consent, it should not matter whether they chose to use drugs or alcohol,” Hochul told reporters. “Voluntary intoxication is not a license for sexual assault or gang rape, period.”
Opponents of changing the law say doing so would erode due process protections and increase the risk of wrongful convictions.
A bill introduced this year to change the law is “simply too vague to be fairly enforced,” the New York State Association of Criminal Defense Lawyers said in a statement. The bill “fails to provide any objective guidance about when a partner is too intoxicated to legally agree to engage in sexual conduct.”
Experts on sexual assault note that victims are often unwilling to report the crime and that prosecutors sometimes hesitate to bring the cases to trial. Research indicates that about half of sexual assaults involve alcohol use by the victim, perpetrator or both.
The existence of laws that distinguish between voluntary and involuntary intoxication is a “concrete example of legal victim-blaming,” said Deborah Tuerkheimer, a law professor at Northwestern University. They emerge from a “long-standing legal and cultural impulse to blame victims who don’t do enough to keep this from happening.”
Researchers found in 2022 that 20 states had statutes that only considered victims incapable of consent if they had been drugged against their will. (Texas changed its law last year, in part due to Willis’s activism.)
Experts criticized Van Houten for relying on the Cornell campus police instead of involving the Ithaca Police Department, as well as his office’s decision not to conduct its own interview of Jane Doe. They said New York law did not block him from filing charges, but complicated it.
Rick Trunfio, a former Onondaga County prosecutor who created its specialized sex crimes unit and now teaches law at Syracuse University, said he would “never, ever rely on campus police putting together a case of sexual assault, ever.”
“They do not have the expertise, the experience and the skill set,” Trunfio said.
Michal Buchhandler-Raphael, a visiting law professor at Michigan State University who has written about drinking and consent, said prosecutors are wary of cases that involve voluntarily intoxicated victims because they are worried juries will question their credibility. But if sufficient evidence exists, the cases should be brought to trial, she said.
“In real life, victims are not perfect,” Buchhandler-Raphael said.
Van Houten said via email Friday that the facts in the case as of 2024 did not permit him to file charges. He also said the campus police officer who interviewed Jane Doe was “trained and experienced.”
Since 2021, at least two states — Texas and Minnesota — have changed their sexual assault statutes to include victims who were voluntarily intoxicated. In both states, the changes followed a particular case or personal story that galvanized public opinion.
“These are not easy laws to pass,” said Texas state Rep. Ann Johnson (D), a former prosecutor who worked on the effort. “I guarantee you that provision would not have passed were it not for Summer Willis’s willingness to come forward.”
In 2014, Willis was at a party at a University of Texas at Austin fraternity when a man gave her a drink she believes was drugged. His friend later assaulted her, she says. Years later, after meeting fellow survivors of sexual assault, she learned that under Texas law, her case would be very difficult to prosecute.
In February 2025, Willis crawled for 13.1 miles, the length of a half-marathon, to draw attention to the bill that would ultimately carry her name. A week after it passed in May, she traveled to New York to lend her support to a similar bill there. Although the measure has passed the New York Senate several times, it has never been brought to the New York State Assembly for a vote.
Jeffrey Dinowitz, a Democratic member of the New York State Assembly who sponsored the bill, said opponents include the criminal defense bar, which is seeking to protect the rights of defendants, as well as those worried about over-policing of certain communities. For Dinowitz, however, it’s a “terrible gap in the law and we’ve got to do something about it.”
Willis agrees. “It really sucks that it took this horrific thing to bring national attention to it,” she said. “The real tragedy would be if we don’t do anything.”
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