Voluntary Intoxication and Consent After the Cornell Case: The New York Rule and the Massachusetts Rule

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 published court decisions, the text of the statutes, public statements by New York officials, and news reporting. The Cornell allegations have not been proved in any court. The case is pending in New York under New York law.

On October 3, 2026, the Washington Post reported that the rape allegations at a Cornell University fraternity have reignited a debate over laws on intoxication and consent. The debate is about one sentence in New York’s Penal Law. Under that sentence, a person who drinks or takes drugs willingly is not “mentally incapacitated,” however impaired that person becomes, unless the substance was administered without the person’s consent.

The Tompkins County District Attorney relied on that rule when he declined to charge anyone in 2024. Governor Kathy Hochul has now promised to work with the Legislature to pass a bill that removes the rule by January. The Speaker of the Assembly has appointed a working group to review the state’s rape laws by the end of the year.

Massachusetts settled the question in 1870. The Supreme Judicial Court held that year that a man who has intercourse with a woman who is too drunk to consent commits rape, and that the source of her condition makes no difference. The court restated the rule in 2008 and again in 2024. A Massachusetts jury asks whether the complainant was so impaired that she could not give or refuse consent and whether the defendant knew or reasonably should have known it. The jury does not ask who poured the drinks.

I have defended rape cases for most of my career. The Massachusetts rule is the right rule, for the accused as well as for the complainant. This post explains why.

The New York Rule

New York Penal Law § 130.05 provides that every sexual offense requires lack of consent. Lack of consent results from forcible compulsion, from incapacity to consent, or, for some offenses, from the complainant’s clear expression that she did not consent. A person is incapable of consent when the person is under 17, “mentally disabled,” “mentally incapacitated,” or “physically helpless,” among other categories.

The definitions in § 130.00 create the problem. A person is “mentally incapacitated” only when the person “is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent.” A person is “physically helpless” only when the person “is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”

A woman who drinks ten drinks of her own choosing, takes a drug that someone hands her, and stays conscious and able to speak is not incapacitated under either definition. A prosecutor in New York must then prove forcible compulsion or a clearly expressed refusal. A woman who was too impaired to refuse clearly can supply neither.

District Attorney Matthew Van Houten explained his 2024 decision on September 28, 2026. He said that Jane Doe’s sworn statement “described her participation in drug use and sexual conduct as voluntary, conscious, and consensual,” and that New York law requires lack of consent through forcible compulsion, incapacity, physical helplessness, or a clearly expressed refusal. He has since reopened the investigation. The Governor has since replaced him with Attorney General Letitia James as special prosecutor. He has also acknowledged, according to Newsweek, that the pending bill would have required his office to investigate further what the men knew about her condition.

The Bill New York Has Not Passed

The bill is not new. Then-Senator Alessandra Biaggi introduced it in 2019. Assemblymember Jeffrey Dinowitz sponsors it in the Assembly as A.101, and Senator Nathalia Fernandez sponsors the companion bill in the Senate. The bill would add a new ground of lack of consent to Penal Law § 130.05. Lack of consent would result when the complainant was “under the influence of any drug, intoxicant, or other substance to a degree which rendered the victim temporarily incapable of appraising or controlling such person’s conduct” and the defendant knew or reasonably should have known of that condition.

The Senate passed the bill in 2020, 2021, 2023, 2024, and 2025, the last time unanimously. The Assembly has never brought it to a vote. The Assembly’s Codes Committee holds it now.

New York is one of nineteen states, by the count reported this week, that treat intoxication as incapacity only when the drug or alcohol was administered without the person’s consent. Minnesota changed its law in 2021 after its Supreme Court held that the old statute did not protect a woman who had been drinking voluntarily. Michigan and Texas changed their laws after that.

The New York State Association of Criminal Defense Lawyers opposes the bill as written. The association argues that the current law already allows prosecution on other theories and that a statute built on whether a person could “appraise or control” the person’s own conduct is too vague.

Yung-Mi Lee of the association told Newsweek that “there has to be outward signs.” The objection is a fair one. The bill already answers part of that objection, because the bill requires proof that the defendant knew or reasonably should have known of the complainant’s condition. Massachusetts answered the rest of the objection eighteen years ago.

The Massachusetts Rule Since 1870

Massachusetts has no statute that defines consent or incapacity. The rule comes from the Supreme Judicial Court, beginning with Commonwealth v. Burke, 105 Mass. 376 (1870). The defendant in Burke helped another man have intercourse with a woman who was, as both men knew, “so drunk as to be utterly senseless and incapable of consenting.” The court held that the act was rape.

The court then rejected the argument that a woman who drank herself into that state deserved less protection. It wrote that “any woman in a state of utter stupefaction, whether caused by drunkenness, sudden disease, the blow of a third person, or drugs which she had been persuaded to take even by the defendant himself, would be unprotected from personal dishonor” if the rule were otherwise, and that “the law is not open to such a reproach.” 105 Mass. at 380-381.

The Supreme Judicial Court modernized the rule 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 court added that “whatever the factor or factors, the question is the same,” which is whether those factors left the complainant incapable of giving or refusing consent. 450 Mass. at 592.

The model instruction the court wrote in Blache tells the jury that a person who is so impaired “because of the consumption of drugs or alcohol” that the person cannot consent has not consented. The instruction does not ask who supplied the drugs or the alcohol. The Supreme Judicial Court restated the rule in Campbell v. Commonwealth, 494 Mass. 750 (2024).

The second half of Blache answers the objection the New York defense bar is raising now. 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 “outward signs” that Ms. Lee asked for are part of the Commonwealth’s burden of proof in Massachusetts. A jury that doubts whether a reasonable person in the defendant’s position would have seen that the complainant could not consent must acquit on the incapacity theory. If the Commonwealth proves both incapacity and knowledge, the only force it must prove is the force of the penetration itself. 450 Mass. at 590-592.

What the Massachusetts Rule Does for the Accused

The Massachusetts rule protects an accused person in three ways that the New York rule does not. The Commonwealth must prove incapacity, not intoxication. The Supreme Judicial Court has said in plain terms that a person who has been drinking can still consent.

The Commonwealth must prove what the defendant knew or should have known, so the case is tried on what the defendant saw and heard, not on a toxicology report alone. A judge gives the incapacity instruction only when the evidence supports a finding of incapacity, so the Commonwealth cannot convert every drunken encounter into a rape prosecution by naming the theory.

A defense lawyer in Massachusetts cross-examines on all three points. The complainant’s own messages before and after the encounter, the accounts of the people who saw her walk, talk, and make decisions, the bar tab, the video, and the timing of each act all bear on whether she could consent and on what the defendant could see.

The firm’s page on consent in Massachusetts rape and sexual assault cases explains the rules on incapacity, force, and the defendant’s knowledge in full.

How the Cornell Facts Would Be Charged in Massachusetts

The reason the District Attorney gave for declining to charge in 2024 does not exist in Massachusetts. A Massachusetts prosecutor reading the same sworn statement would not ask whether Jane Doe drank and took the ketamine willingly. The prosecutor would ask whether she was so impaired that she could not give or refuse consent to each act, and whether each man knew or should have known of her condition.

The men who gave her the drug, the member who advertised her in the fraternity’s group chat, and the member who apologized for being too impaired “to shut it down” would answer the second question for a jury. The firm’s post on the Cornell fraternity rape case under Massachusetts law applies the Massachusetts rules to the full public record.

My Assessment

The New York rule is a relic of the idea that a woman who drank assumed the risk of whatever followed. Massachusetts rejected that idea in 1870, when the Supreme Judicial Court wrote that the law “is not open to such a reproach.”

New York’s Legislature has had the bill in front of it for seven years and has passed it through one chamber five times. The Cornell case shows what the delay costs. A woman who, on her own account, was given ketamine by the men in the room and could not stand by the end of the night was told by the prosecutor that the law did not cover what happened to her because she took the drug herself.

The defense bar’s concern about vagueness deserves an answer. Massachusetts has given that answer. Massachusetts defines incapacity as the inability to give or refuse consent, requires the prosecutor to prove that the defendant knew or reasonably should have known of that incapacity, and allows the instruction only where the evidence supports a finding of incapacity.

That rule has governed Massachusetts rape trials since 2008. In my experience it has not produced the wave of prosecutions built on regret that opponents of the New York bill predict.

Key Takeaways

• New York Penal Law § 130.00 treats a person as “mentally incapacitated” only when the drug or alcohol was “administered to him without his consent,” so a person who drinks or takes drugs willingly and stays conscious is not incapacitated under the statute. The Tompkins County District Attorney relied on that rule when he declined to charge anyone in the Cornell case in 2024.
• A bill to remove the distinction has passed the New York Senate five times since 2020 and has never come to a vote in the Assembly. Governor Hochul has promised to work with the Legislature to pass a bill by January 2027. The Assembly Speaker has appointed a working group to report by the end of 2026.
• Massachusetts has applied the opposite rule since Commonwealth v. Burke, 105 Mass. 376 (1870). Intercourse with a person too impaired to consent is rape whether the impairment came from drink, drugs, illness, or injury, and regardless of who caused the impairment.
• Under Commonwealth v. Blache, 450 Mass. 583 (2008), the jury decides whether the complainant was unable to give or refuse consent. The Commonwealth must also prove that the defendant knew or reasonably should have known of her condition. Intoxication alone is not incapacity.
• The knowledge requirement is the safeguard that the New York defense bar is asking for. Massachusetts has had it since 2008.

Related Serpa Law Office resources

• How the Men of Cornell University Failed Jane Doe: The Cornell Fraternity Rape Case Under Massachusetts Law
• Consent in Massachusetts Rape and Sexual Assault Cases
• 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