There is no question that something terrible happened at a Cornell University fraternity in 2024. The question is what. Was it a brutal gang rape? Or was it something messier and more complicated, a sexual encounter that was unwise but nonetheless consensual?
What facts we have are not enough to distinguish between the two possibilities.
A Cornell student, identified as “Jane Doe” in a lawsuit filed in September against the university, seven members of the Chi Phi fraternity and others, says she was the victim of a gang rape at the fraternity house while she was intoxicated. According to the lawsuit and a 2024 police statement, the brothers treated her abominably, posting a disgusting message about her to a group chat.
What we cannot ascertain — and may never be able to — is whether she was too intoxicated to be able to consent. So we are now fighting over this as we have fought over so many accusations over the last few decades — the Duke University rape hoax, the allegations that Christine Blasey Ford made against Brett M. Kavanaugh during his Supreme Court confirmation hearings, and the endless horrors unearthed by #MeToo. But why? Why is it so hard to agree on something that seems, to both sides, as though it ought to be obvious?
One answer is that sex between people who know each other is hard to adjudicate from outside, especially when one or both parties have been drinking or using drugs, thereby lowering their inhibitions, impairing their judgment and blurring their memories. Another is that different people can genuinely view an encounter differently, especially in hindsight, after regret has set in.
But I’d argue the reason these fights are so fraught is mostly that we are trying to believe too many contradictory things.
We want sex to be simple and sexual assault to be simply unthinkable. We want there to be bright lines that obviously shouldn’t be crossed so we can shout “J’accuse” at anyone who does.
But we want to proclaim that men and women are fundamentally the same, aside from socialization. We want to declare that anything goes, as long as both parties have consented. And then we want to set 18-year-olds free to live out this liberation theology.
The result is predictably disastrous. We demand that young people with poor judgment respect boundaries, and then we refuse to establish any.
I know the retort that will spring to many readers’ minds: Consent is a clear boundary. It is certainly a boundary, and sometimes it is clear. If you force yourself on someone who is screaming and pushing you away or who is trembling on the edge of unconsciousness, that person must be left alone. If you do not, we can and should put you in jail.
But we keep fighting because consent is often not clear — at least not in a way that is coherent with our doctrines of utter sexual liberation and complete equality between the sexes.
When two people who are both extremely drunk have sex — as I believe may sometimes happen — did they rape each other? Or was the woman obviously the victim?
Many people instinctively treat such an encounter as one in which the woman is the victim and the man the predator. After the Obama administration issued informal guidance in 2011, effectively instructing colleges to make more of an effort to discipline sexual assault, including relaxing standards for due process, many colleges acted on that intuition. Though the rules were ostensibly gender neutral, Emily Yoffe noted in the Atlantic that “it is clear that the Obama administration rightly viewed campus assault overwhelmingly as something male students do to female ones.”
That’s a defensible stance if you believe that women are not, in fact, the same as men — that when sober and possessing their full good judgment, women are generally less likely to want casual sex and much more likely to suffer from it. But that intuition could not be named explicitly, because that would have violated too many other shibboleths and called the “anything goes” doctrine into question.
Given the facts we now have, it is possible to believe that Jane Doe assented to an encounter that she later bitterly regretted when the story became known around campus. It is also possible to believe something criminal happened. But most of us do know that whether or not she said yes, Jane Doe was treated in a way no woman should. We think those fraternity brothers should have known better.
They should have. What they did was, at a minimum, a shameful violation. But if we want boys and men to know that — deep enough in their bones that they will remember the lesson even while drinking and snorting ketamine — we need to communicate something different from “anything goes, as long as everyone says yes.” We need to say something about the differences between men and women.
We’re not willing to do that, so instead we are trying to shoehorn our contradictory impulses into the weak framework of consent. No one in their right mind would consent to sex that would traumatize and shame them. Jane Doe was traumatized and shamed. Ergo, it was rape.
This is not a workable way to determine criminal liability. As the frequency of such incidents shows, it is not a workable cultural script, either. But it seems we are determined to stick to it, rather than admitting that there’s something wrong with many of our other ideas about men and women, and the kinds of things they are likely to want.
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