How the Men of Cornell University Failed Jane Doe: The Cornell Fraternity Rape Case Under Massachusetts Law

By Attorney Joe Serpa | Georgetown University Law Center

This post is for general informational purposes only and is not legal advice. It is based on the civil complaint, public statements by Cornell University and New York officials, and published news reporting, including reporting on documents from Cornell’s Title IX investigation. The complaint’s allegations have not been proved in any court. The case is pending in New York under New York law. No criminal charge had been filed as of October 3, 2026. Lawyers for several of the men named in the lawsuit have denied the allegations.

On the night of October 19, 2024, a 20-year-old Cornell University sophomore walked alone to the Chi Phi fraternity house in Ithaca, New York, after drinking at her sorority house and at a downtown bar. She says that over the next seven hours fraternity members gave her ketamine and more alcohol, that one member posted in the fraternity’s group chat that there was “free” sex upstairs, and that seven members of the fraternity sexually assaulted her while she was too impaired to consent. She lost consciousness at about 5:45 a.m. She reported the night to the Cornell University Police Department nearly three weeks later.

The Tompkins County District Attorney reviewed her sworn statement in November 2024 and declined to charge anyone. Cornell’s Title IX office held at least twelve hearings in May 2025. The hearing panel expelled two of the men and suspended others. In September 2026 the woman, identified in court papers as Jane Doe, sued Cornell, the fraternity, her sorority, a bar, and the seven men in the Supreme Court of the State of New York in Manhattan. Public reaction to the lawsuit was swift and angry. The District Attorney reopened the criminal investigation on September 28, 2026. On October 1, 2026, Governor Kathy Hochul removed the District Attorney from the case and appointed Attorney General Letitia James as special prosecutor.

Any criminal or civil case will be heard in New York. New York courts will decide it under New York law. New York’s rape law is similar to Massachusetts law in most respects. Both states require the prosecution to prove that the complainant did not consent. Both treat intercourse by force, and intercourse with a person incapable of consenting, as rape. The two states define incapacity differently, however. The second part of this post explains that difference.

The first part of this post is about something no court will decide, which is what the young men in that house owed Jane Doe, how they failed her, and what every man should learn from their failure. The second part examines how Massachusetts criminal law would apply if the same events had happened at a fraternity house in Massachusetts, how a college panel, a Title IX hearing, and a criminal jury apply different standards to the same night, and why a criminal courtroom is a hard place for a woman who reports a rape. Nothing in the second part predicts what New York’s special prosecutor or a New York grand jury will do. I have defended men accused of rape for most of my career and will continue to defend them. I am also sympathetic to Jane Doe. A defense lawyer can hold both positions. The question for a jury is whether the Commonwealth has proved a crime beyond a reasonable doubt. The question of decency is different. This post takes it up first.

How the Men of the Cornell Fraternity Failed Jane Doe

A woman who is impaired and alone in a room with men coming into the room by profane invitation is in danger. Every man who saw Jane Doe at Cornell that night had one obligation. He had to stop what was happening. He had to intervene to help her, make sure she remained safe, and call the police.

This obligation is universal and comports with basic humanity and human decency. It was owed Jane Doe even if only one person in the house had the courage to stand up, as the others laughed at him, threatened him, and if it cost his standing in the fraternity. Stopping a sexual assault is not heroism. It is the minimum that one human being owes another. A young man who cannot meet that minimum should not be trusted in a room with a woman who has been drinking or using drugs, whether voluntarily or under duress.

Put differently, we should not live in a world where the obligation to stay safe from men is imposed on women. We should have moved beyond this long ago.

The men at Cornell that night understood that most basic decency even if they could not comport with it. One wrote two days later in pointless hindsight that he was sorry he had been too impaired “to shut it down and kick people out before it got way out of hand.” He knew right and wrong, not only because he described it, but because it is so fundamental. He knew he should have intervened. He did not. He blamed alcohol. His attention should be on his own character. His post-hoc shame is not absolution.

Others, as we know, joined the sexual assault. Yet others turned a blind eye, and one of them advertised Jane Doe as there for the taking.

Massachusetts law does little to create a legal obligation consistent with this duty of basic humanity. Under G.L. c. 268, § 40, a person who knows that another person is the victim of a rape and is at the scene must report the crime to the police as soon as reasonably practicable, as long as he can do so without danger to himself or others. A person who violates § 40 faces a fine of $500 to $2,500.

The Legislature enacted that statute in December 1983, nine months after the Big Dan’s tavern rape in New Bedford, where patrons laughed and cheered while a woman was raped on a pool table and no one called the police. The statute creates a baseline of the very least a bystander must do. The criminal law does not require a person to intervene. Under the Massachusetts joint venture rule, discussed in the second part of this post, a person who stands in the room and does nothing is not guilty of the rape.

Decency requires far more than the statute does.

Standing up for a victim in that moment may mean being the odd person out. Standing up means telling the people you live with that their conduct is detestable and vile, in a setting where others have already disregarded that basic truth.

Young men should all reflect on whether they have the courage to do what is right in the face of social pressure. If they decide they do not, they should reflect on that and second-guess whether they deserve to be in the company of potential victims of sexual violence. The lesson is for all people, not only fraternity members. The same duty applies at a bar on Boylston Street, at a wedding, at an office party, or in an apartment when a friend brings home someone who is obviously incapacitated or has reduced judgment. Seeing that a person cannot protect themselves is all it takes to step in.

The obligation to step in at Cornell continued after that night. The decent response was to offer support by telling the truth. Cornell’s own survey, released in November 2025, found that 35 percent of its undergraduate women reported nonconsensual sexual contact since arriving on campus. The young men on that campus, and on every campus in Massachusetts, are solely responsible for lowering that percentage to zero.

A Victim’s Minimization After a Sexual Assault

Jane Doe’s messages over three weeks record a woman who first described the night as something she had done to herself. Over time she saw that it was something that had been done to her. In my experience, victims of sexual assault often minimize the assault afterward, to themselves and to others, for reasons that have nothing to do with whether it happened. Some minimize to preserve a friendship or a social world they cannot afford to lose. A sophomore in a Greek system at a university far from home is in exactly that position.

Others minimize because admitting the truth means becoming a victim in their own eyes. Some minimize because they were drunk or drugged and blame themselves for being there. Some minimize because the men involved are telling them, in friendly texts, that it will “blow over soon.” The Supreme Judicial Court recognized this in Commonwealth v. King, 445 Mass. 217, 242 (2005), when it abolished the requirement of a “fresh” complaint and wrote that “victims often do not promptly report a sexual assault for a variety of reasons that have nothing to do with the validity of the claim of assault.”

The sexual double standard is another reason women stay silent. Within two days, the rumor at Cornell was that Jane Doe was promiscuous in vile terms. She first accepted the label. “Unfortunately they are true,” she wrote. By contrast, no one at Cornell used slurs against the men. She found a lifeline for what had happened to her only when an anonymous stranger on a forum named it. “That’s the first time I had ever heard the narrative change that I wasn’t a whore and that I was assaulted.” A woman who expects to be judged about having sex rather than protected from the assault has too much reason not to come forward. The people who shamed her gave her that reason.

Shortly after her assault, the fraternity told her she was no longer welcome. This was a new and atrocious insult after severe injury. The disinvitation from a fraternity Halloween party made her silence more likely. She understood what the chapter president’s call meant and said so. “Yall aren’t my friends. Yall are covering your asses.” The fraternity made clear whose reputation the men in the house intended to protect.

What the Public Record Shows

The complaint alleges that Jane Doe drank vodka at her sorority house beginning at about 8:30 p.m., then drank more at a downtown bar even though she was under 21, and had consumed about ten standard drinks in three hours by the time she arrived at Chi Phi at about 11 p.m. to meet a friend who was a member. The friend gave her a beer and took her inside. Upstairs, according to the complaint, members pressured her to snort a white powder they said was ketamine, gave her marijuana and high-proof liquor, and began sexual activity with her.

Transcripts of her interviews, reported by CBS News, show that she described the first sexual encounter, with two men she knew, as something she “was OK with” at the time, even though she was heavily intoxicated. At 1:42 a.m. a fraternity member posted in a Snapchat group called “Chi Phi Actives” that there was “free” sex upstairs, using a vulgar word for a woman’s body. Another member asked whether the “shop” was “still open” and was told that it was. Jane Doe says that more men came into the room, that she was pressured to take more ketamine until she was “completely incapacitated,” and that she was struck during the night. She told investigators, “I’m a naked woman and they are getting in bed with me.” She lost consciousness at about 5:45 a.m.

Over the next three weeks her messages changed. On October 21 she told her sorority “big sister” that rumors calling her a slut were “unfortunately” true. She told her roommates, “If anyone asks about this, say it didn’t happen.” The same day one of the men texted an apology “for how things went down the other night” and wrote that he felt terrible for being “too under the influence of drugs and alcohol to shut it down and kick people out before it got way out of hand.” She answered that “non[e] of the sexual stuff was illegal.” On October 23 she texted that the night was “RUINING my life temporarily” and, in another message, “My reputation is destroyed and I’m utterly ashamed.” One of the men told her that Chi Phi “is your house and you are welcome here.” The chapter president then called to tell her not to come to the fraternity’s Halloween party, “for her own good.” She wrote back, “I knew this was going to happen. The woman will always get the short end of the stick. Yall aren’t my friends. Yall are covering your asses.”

Late in October she saw an anonymous post on a campus forum that said the fraternity’s members “do drugs and gang r*ped a sophomore.” She later told investigators, “That’s the first time I had ever heard the narrative change that I wasn’t a whore and that I was assaulted.” On November 3 she texted one of the men that “90% of what happened that night was not consensual.” She had gone to Cornell Health on October 22 and reported an infection contracted in “a traumatic way,” but no one referred her for a sexual assault evidence kit. She asked for one at an emergency room on November 7. By then any DNA evidence was gone. On November 8 she reported the assault to the Cornell University Police Department. On November 14 she signed a six-page sworn statement and told the officer, “I can say with 100% confidence I was raped.”

Cornell suspended the chapter and the seven men on an interim basis the same week. The university’s Title IX office opened a formal investigation in January 2025, interviewed 32 witnesses, and held at least twelve hearings in May 2025. According to CBS News, the panel expelled two of the men, suspended two for multiple semesters, found two not responsible, and could not sanction one who had already graduated. Cornell has said that it did not offer any of the men an essay as his only sanction. The Chi Phi national organization says it expelled the accused members from the fraternity within days of her report and later closed the chapter. Jane Doe withdrew from Cornell.

District Attorney Matthew Van Houten explained his 2024 decision in a statement on September 28, 2026. He said that her sworn statement “described her participation in drug use and sexual conduct as voluntary, conscious, and consensual,” and that under New York Penal Law § 130.05 a sex crime requires lack of consent through forcible compulsion, incapacity, physical helplessness, or a clearly expressed refusal. He also said that his office never received the transcript of the interview in which she said she was raped. He reopened the investigation the same day. Three days later the Governor replaced him with the Attorney General, who now decides whether to present the case to a grand jury.

Four Standards for One Night: the College Code, Title IX, the Criminal Law, and Basic Human Decency

Cornell judged the men under its own code of conduct. New York requires every college in the state to adopt the same definition of consent, which the statute calls affirmative consent and defines as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” N.Y. Education Law § 6441. Under that definition, silence or lack of resistance is not consent, consent to one act is not consent to another, consent may be withdrawn at any time, and a person who is incapacitated by alcohol or drugs cannot consent. A college panel decides whether the responding student violated the code, usually by a preponderance of the evidence. The most severe sanction a college can impose is expulsion.

Title IX is the federal law that requires a college receiving federal funds to respond to sexual harassment, including sexual assault, as sex discrimination. The regulations in force for a college disciplinary case are the 2020 regulations, which the Department of Education restored and formally re-adopted on September 29, 2026. Under those regulations a college must give the accused student notice and a presumption that he is not responsible, must share the evidence with both sides, must hold a live hearing, and must let each party’s advisor cross-examine the other party and the witnesses. The college chooses whether it will decide the case by a preponderance of the evidence or by clear and convincing evidence. The college also writes its own definition of consent, because the federal regulations do not impose one.

Massachusetts adds its own campus statute. G.L. c. 6, § 168E requires every public and private college in the Commonwealth to adopt a sexual misconduct policy, to designate a confidential resource provider trained in trauma-informed response, to tell students that they have the right to notify the police or to decline to notify the police, and to let a student pursue the college’s disciplinary case and a criminal case at the same time. The policy must presume the responding student not responsible until the panel decides, must state the standard of evidence the college uses, and must prohibit the two students from questioning each other directly. The statute does not define consent. Each Massachusetts college writes its own definition, and a student’s case depends on the definition in that college’s policy.

The criminal law is a separate system with a separate decision-maker. A college panel decides whether a student violated a policy. A grand jury decides whether to indict, and a trial jury decides whether the Commonwealth has proved a crime beyond a reasonable doubt. The district attorney decides whether to seek an indictment, what to charge, and what plea to offer. The complainant does not control those decisions. A college can expel a student. A judge can sentence a man convicted of rape to state prison for up to twenty years, or for life if the rape was aggravated.

The most fundamental human decency is the fourth standard. No panel enforces it. The first part of this post is about that decency.

How Massachusetts Defines Rape

From this point on, this post treats the Cornell allegations as if the fraternity house stood in Massachusetts and a Massachusetts district attorney, rather than a New York prosecutor, were reviewing them. New York law governs the real case. Massachusetts defines rape in G.L. c. 265, § 22(b). The Commonwealth must prove that the defendant had sexual intercourse or unnatural sexual intercourse with the complainant, and that he compelled her to submit by force and against her will, or by threat of bodily injury. The Supreme Judicial Court treats “by force” and “against her will” as two separate elements, so the Commonwealth must prove both force and lack of consent. Commonwealth v. Lopez, 433 Mass. 722, 726-727 (2001). Any penetration, however slight, is sexual intercourse under the statute. The jury decides whether the woman consented at the moment of each act of penetration, so consent to one act is not consent to the next. A person convicted of rape under § 22(b) faces up to twenty years in state prison.

Section 22(a) defines aggravated rape. The Commonwealth proves aggravated rape when it proves a rape that caused serious bodily injury, a rape committed during certain other felonies, or a rape “committed by a joint enterprise.” A person convicted of aggravated rape faces imprisonment in state prison for life or for any term of years. An allegation that several men raped one woman together is, in Massachusetts, an allegation of aggravated rape against each man who participated. The Commonwealth has fifteen years from the date of the rape to indict a defendant for rape. G.L. c. 277, § 63.

The Commonwealth does not have to prove that the defendant knew the woman was not consenting. Rape is a general intent crime. The Commonwealth proves it by proving that the defendant intended intercourse by force and that the woman did not in fact consent. Lopez, 433 Mass. at 727-728. The Supreme Judicial Court in Lopez declined to recognize a defense of honest and reasonable mistake about consent, reasoning that “[p]roof of the element of force, therefore, should negate any possible mistake as to consent.” 433 Mass. at 729. The court left the question open for a future case in which a claim of reasonable mistake is “at least arguably supported by the evidence.” 433 Mass. at 732. The defendant in Lopez testified that the complainant consented. The court held that his claim of actual consent did not entitle him to a mistake instruction. The court reaffirmed the rule in Commonwealth v. Urban, 450 Mass. 608 (2008), decided the same day as Blache, and wrote that Massachusetts does not require the Commonwealth to prove in every rape case that the defendant lacked a reasonable and good faith belief in the complainant’s consent. The Appeals Court has since restated the rule. Massachusetts does not recognize mistake of fact about consent as a defense to rape, except to the extent that Blache, discussed next, recognizes it in incapacity cases. Commonwealth v. Butler, 97 Mass. App. Ct. 223, 230-231 (2020).

The “mistaken belief in consent” that lawyers in other states treat as a defense is therefore, in a Massachusetts case built on force, an argument about the facts rather than a separate defense. The defendant argues that the woman consented. The jury must acquit if it has a reasonable doubt about force or about consent. The exception is the case in which the Commonwealth relies on the woman’s incapacity rather than on force, which is exactly the kind of case the Cornell facts present. The firm’s page on consent in Massachusetts rape and sexual assault cases covers the rules on force, incapacity, age, mistaken belief, and withdrawn consent in full.

Alcohol, Ketamine, and the Capacity to Consent

A woman who is so impaired by alcohol or drugs that she cannot give or refuse consent cannot consent. Massachusetts applies that rule whether or not she took the alcohol or the drugs willingly. The Supreme Judicial Court set out the rules in Commonwealth v. Blache, 450 Mass. 583 (2008). Intoxication by itself is not incapacity. “The question instead is whether, as a result of the complainant’s consumption of drugs, alcohol, or both, she was unable to give or refuse consent.” 450 Mass. at 591-592. The complainant does not have to have been unconscious or nearly so. A jury that finds beyond a reasonable doubt that she was so impaired as to be incapable of consenting has found lack of consent. The Commonwealth then needs to prove only the force needed to accomplish the penetration itself. 450 Mass. at 590-592.

Blache protects the defendant as well. A prosecutor who relies on incapacity must also prove beyond a reasonable doubt that the defendant “knew or reasonably should have known that the complainant’s condition rendered her incapable of consenting to the sexual act.” 450 Mass. at 594. The knowledge requirement is the Massachusetts form of the mistaken-belief defense. A man who had sex with a woman who was in fact too impaired to consent is not guilty of rape on an incapacity theory if the jury has a reasonable doubt about whether he knew or should have known of her condition. A man who ignored a woman’s clear refusal cannot make that argument. Commonwealth v. Kennedy, 478 Mass. 804, 811 (2018).

New York defines incapacity more narrowly than Massachusetts does. Under New York Penal Law § 130.00, a person is “mentally incapacitated” only when a drug or intoxicant was “administered to him without his consent,” and a person is “physically helpless” only when she is unconscious or otherwise physically unable to communicate unwillingness. A woman who willingly drinks ten drinks and willingly snorts ketamine, and who remains conscious and able to speak, is not incapacitated under those definitions, however impaired she is. The District Attorney said that her 2024 statement described none of the circumstances that New York law requires. New York legislators have had a bill to remove that distinction in front of them since 2019. The Governor has promised to work with the Legislature to pass the bill by January. The firm’s post on voluntary intoxication and consent explains the New York rule, the bill, and the Massachusetts rule that has applied since 1870.

A Massachusetts jury answers a different question. The source of the impairment is irrelevant under Blache. The jury decides whether the woman was so impaired that she could not give or refuse consent, and whether the man knew or should have known of her condition. On the facts Jane Doe alleges, a Massachusetts prosecutor would point to about ten drinks in three hours before she arrived, repeated doses of ketamine that the men themselves gave her, a roommate’s account that she told one of the men her “eyes were crossed” from the drug when he had sex with her, the group-chat invitation to other members, and the apology text from a participant who wrote that he had been too impaired “to shut it down and kick people out before it got way out of hand.” The men gave her the drug, which is evidence of what they knew about her condition. The evidence of her drinking and her drugging bears on her capacity. The men’s own messages bear on their knowledge.

The defense would answer with her own words. She told the police that she “was OK with” the first encounter. She texted one of the men two days later that “non[e] of the sexual stuff was illegal.” She told the police that she swatted away hands she did not want on her, which the Commonwealth would offer as evidence of refusal but which a defense lawyer would offer as evidence that she was capable of refusing. She agreed to the first encounter. She remembers parts of the night in detail. A Massachusetts jury would have to decide whether she was capable of consenting act by act and man by man. A woman who was capable of consenting at midnight can be incapable of consenting at 4:00 a.m. The jury judges a man who joined the room at 4:00 a.m. on what he saw and knew at 4:00 a.m.

Drugging a Person for Sexual Intercourse

Massachusetts also makes it a separate crime to drug a person for sex. G.L. c. 272, § 3 punishes anyone who “applies, administers to or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse with such person.” A person convicted under § 3 faces imprisonment in state prison for life or for any term of years not less than ten. The statute applies to a man who gives a woman a drug so that another man can have sex with her, because it covers enabling “any person” to have intercourse. The Commonwealth would have to prove the intent to stupefy or overpower her for that purpose. The men’s own messages would be the prosecutor’s evidence of that intent.

Joint Venture Liability and Aggravated Rape by Joint Enterprise

Massachusetts punishes a man who helps or encourages a rape as a participant in the rape. The jury may convict a defendant who “knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). Under the model instruction in the appendix to Zanetti, participation includes personally committing the act, aiding another in it, or “asking or encouraging another person to commit the crime.” Mere presence is not enough. A man who stood in the room, knew what was happening, and did nothing is not guilty of rape under Massachusetts law. Knowing about the crime and failing to prevent the crime is not participation in the crime. A man who posted a message inviting his fraternity brothers upstairs to a woman he knew was impaired has done more than stand there. A prosecutor would argue that the message was encouragement. The jury would then decide whether the man who sent it knew her condition and intended that others have sex with her.

Participation by several men also makes the crime aggravated rape. Rape “committed by a joint enterprise” is aggravated rape under § 22(a), punishable by life or any term of years. In the Big Dan’s tavern case, which arose in New Bedford in 1983, the Supreme Judicial Court upheld the aggravated rape convictions of men who raped a woman on a pool table while other patrons, according to the trial testimony, laughed and cheered. Commonwealth v. Cordeiro, 401 Mass. 843 (1988). In Cordeiro the court stated the same rule that Lopez later confirmed. The Commonwealth “is not required to prove either that the defendant intended the sexual intercourse be without consent or that he had actual knowledge of the victim’s lack of consent.” 401 Mass. at 851 n.11.

The jury judges each man separately. The Commonwealth must prove each defendant’s own participation and intent. The jury judges a man who had consensual sex with Jane Doe early in the evening and left on that act alone. The jury judges a man who came upstairs in response to the message on what he did and on what he knew when he did it. Cornell’s panel found two of the seven not responsible under the university’s own standard of evidence, which shows how differently the evidence can come out against different men in the same room.

Consent Given Earlier in the Night and Consent Withdrawn

Jane Doe says she initially agreed to sex with two men she knew and did not agree to what followed. Massachusetts law treats the two parts of the night separately. The jury decides whether the woman consented at the moment of each act of penetration, so a woman’s consent to intercourse with one man at midnight is not consent to intercourse with a different man at 3:00 a.m. For the men who came into the room later, the Commonwealth would have to prove that she did not consent to each act at the time it occurred.

A victim need not fight back for the jury to find that they did not consent. Lopez, 433 Mass. at 729. For the two men Jane Doe first agreed to be with, the question is whether she withdrew her consent and whether they continued anyway. The Supreme Judicial Court held in Commonwealth v. Sherman, 481 Mass. 464, 473-475 (2019), that intercourse that begins with consent becomes rape when the woman withdraws consent, reasonably communicates the withdrawal, and the man continues by the force needed to continue. The communication need not be in words. “Physical gestures, such as trying to push the defendant away or attempting to move in a way that would require the defendant to end the penetration, may suffice,” the court wrote, as long as a reasonable person in the defendant’s position would have understood them.

The Commonwealth does not have to prove that the defendant understood the withdrawal. The requirement that the victim communicate the withdrawal applies only to an act they consented to at first. For an act they never consented to, the Commonwealth does not have to prove that there was a communicated refusal at all. Jane Doe told the police that several men approached her and that she swatted them away. A Massachusetts jury would treat that gesture as a communicated withdrawal of consent.

A sexual touching without intercourse is a separate crime. Indecent assault and battery on a person fourteen or older, G.L. c. 265, § 13H, punishes an intentional, indecent touching without consent. A person convicted under § 13H faces up to five years in state prison or up to two and one-half years in a house of correction. Lack of consent is an element the Commonwealth must prove. The Blache rules on intoxication also apply to this charge, as the firm’s page on indecent assault and battery explains. Because the Commonwealth does not have to prove force for this charge, the appellate courts have discussed whether a defendant may be entitled to a mistake-of-fact instruction in a case where the evidence supports an honest and reasonable belief that the complainant consented. They have refused the instruction where the complainant said no and where the evidence did not support the claim. Kennedy, 478 Mass. at 811. Butler, 97 Mass. App. Ct. at 230-231.

The Burden of Proof and Cross-Examination in a Massachusetts Rape Trial

A Massachusetts jury may convict only when the Commonwealth has proved every element beyond a reasonable doubt. The judge tells the jury that proof beyond a reasonable doubt leaves them with “an abiding conviction, to a moral certainty, that the charge is true,” and that “it is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty.” Commonwealth v. Russell, 470 Mass. 464, 477-478 (2015). The reasonable doubt standard is the same for every crime, but it is harder to meet in a rape case built on the word of a complainant who was intoxicated, who remembers parts of the night and not others, and who waited nearly three weeks to report. A college panel that found two men responsible under the university’s standard of evidence was answering an easier question than a jury would answer.

Under the Sixth Amendment and Article 12 of the Massachusetts Declaration of Rights, the accused has the right to confront the witnesses against him. His lawyer cross-examines the complainant directly. Title IX hearings assign that questioning to an advisor. In Massachusetts, G.L. c. 6, § 168E forbids the two students in a college case from questioning each other at all. A criminal trial puts no one between the complainant and the defense lawyer’s questions. Jane Doe would face a defense lawyer whose job is to show the jury every reason to doubt her account.

The cross-examination would be built from her own messages. A witness’s prior inconsistent statement is admissible to impeach her. The defense would read her texts to the jury in her own words. She wrote that “non[e] of the sexual stuff was illegal,” that she “really liked being” with two of the men, and that her roommates should “say it didn’t happen” if anyone asked.

She described the night to the first people she spoke with in terms that did not describe a rape. Under the first complaint doctrine, the first person a complainant told that she was sexually assaulted may testify to what she said and when. The jury may consider the timing of the complaint and the circumstances in which it was made in weighing her credibility. King, 445 Mass. at 242-245.

The civil lawsuit seeks compensatory and punitive damages. The defense would argue that the money is her motive. A defendant has a constitutional right to cross-examine a complainant about bias and motive to lie. Commonwealth v. Joyce, 382 Mass. 222, 229-231 (1981). Defense counsel may also ask a judge for access to her counseling records under the protocol in Commonwealth v. Dwyer, 448 Mass. 122 (2006), which lets counsel inspect privileged records under a protective order after a judge finds them relevant and necessary.

Massachusetts law would protect Jane Doe in several ways. The rape shield statute, G.L. c. 233, § 21B, bars nearly all evidence of a complainant’s past sexual conduct. The statute likewise bars evidence of her specific sexual conduct with anyone other than the defendant unless the conduct explains a physical condition the Commonwealth relies on. Even evidence of past sexual conduct with the defendant can be admitted only after a non-jury hearing on a written motion and a finding by the judge that its weight and relevancy outweigh its “prejudicial effect to the victim.”

The constitutional right to show bias can override the rape-shield statute, but a judge must limit that evidence as far as possible without infringing the right. Joyce, 382 Mass. at 231. A victim’s name in court and police records is not open to public inspection. G.L. c. 265, § 24C. Their communications with a sexual assault counselor at a rape crisis center are privileged and are not subject to discovery without their written consent. G.L. c. 233, § 20J. A jury would hear from the judge that sexual assault complainants “may delay reporting the crime for a variety of reasons,” because the first complaint instruction says so. King, 445 Mass. at 247-248. The Commonwealth could call an expert, moreover, to explain in general terms why victims delay reporting and why they may stay in contact with the men who assaulted them, although the expert may not testify about Jane Doe herself or say that she was assaulted. Commonwealth v. Mamay, 407 Mass. 412, 421-422 (1990).

My assessment as a defense lawyer is that a Massachusetts prosecutor would have a stronger legal basis to charge the men than the Tompkins County District Attorney believed he had under New York’s definitions. Under Blache, impairment, not how a victim becomes impaired, creates non-consent. The group-chat message and the apology text are evidence of knowledge and intent. The same prosecutor would face a hard trial, because the Commonwealth’s case would rest on the memory of a woman who was drugged and impaired. They would also need to confront the victim’s messages in which she minimized what happened to her for nearly three weeks. A young woman deciding whether to report deserves to hear all facets of the prosecution, good or bad.

Key Takeaways

• Attorney Serpa’s position is that every man in that house owed Jane Doe the simple decency of stopping what was happening and getting her to safety, even as the odd man out, and that the same duty applies to every man, in every setting, who sees a woman who cannot protect herself. Massachusetts law requires only that a bystander at the scene of a rape report it. G.L. c. 268, § 40. Decency requires more.
• Jane Doe alleges that seven Chi Phi members at Cornell sexually assaulted her over seven hours on October 19 and 20, 2024, after giving her ketamine and alcohol, and that one of them advertised her in the fraternity’s group chat. The Tompkins County District Attorney declined to charge in 2024, reopened the case on September 28, 2026, after she sued, and was replaced three days later by New York Attorney General Letitia James as special prosecutor. New York law governs the case. This post examines how Massachusetts law would apply if the same events had happened in Massachusetts.
• A college panel, a Title IX hearing, and a criminal jury apply different standards to the same night. Cornell’s panel applied New York’s affirmative consent definition under the university’s own standard of evidence and expelled two men. A criminal jury must find every element proved beyond a reasonable doubt.
• In Massachusetts, a woman who is so impaired by alcohol or drugs that she cannot give or refuse consent cannot consent, whether or not she took the alcohol or drugs willingly. The Commonwealth must also prove that the defendant knew or reasonably should have known of her condition. Commonwealth v. Blache, 450 Mass. 583 (2008). New York’s definition of “mentally incapacitated” covers only a drug administered without the person’s consent.
• Massachusetts does not recognize an honest and reasonable mistake about consent as a defense to forcible rape. Commonwealth v. Lopez, 433 Mass. 722 (2001). The Commonwealth must prove the defendant’s knowledge only in an incapacity case, under Blache.
• A rape committed by a joint enterprise is aggravated rape under G.L. c. 265, § 22(a), punishable by life or any term of years. A man who encourages others to join is a participant under Commonwealth v. Zanetti, 454 Mass. 449 (2009). Drugging a person for sexual intercourse is a separate crime under G.L. c. 272, § 3, punishable by life or any term of years not less than ten.
• A criminal trial is hard for an accuser. Defense counsel cross-examines her directly, her texts minimizing the assault are admissible to impeach her, her civil lawsuit is evidence of motive, and the Commonwealth must prove the case beyond a reasonable doubt. The rape shield statute, the confidentiality of her name under G.L. c. 265, § 24C, and the first complaint instruction protect her in part.
• Victims commonly minimize an assault afterward, out of shame, self-preservation, and the sexual double standard. Massachusetts law recognizes that delay in reporting is consistent with a true account. Commonwealth v. King, 445 Mass. 217 (2005).

Related Serpa Law Office resources

• Consent in Massachusetts Rape and Sexual Assault Cases
• Voluntary Intoxication and Consent After the Cornell Case: The New York Rule and the Massachusetts Rule
• Sexual Assault and Rape Defense in Massachusetts
• Charged With Indecent Assault and Battery in Massachusetts: Defenses, Penalties, and the Sex Offender Registry
• College and University Student Criminal Defense Lawyer: Boston and Cambridge
• Cross-Examination in Massachusetts Criminal Trials
• Massachusetts Student Criminal Defense FAQs
• Massachusetts Text Message and Phone Evidence FAQs
• Testifying at a 209A Restraining Order Hearing While the Criminal Case Is Pending