A former student at Cornell University filed a lawsuit last week alleging harrowing details of a 2024 sexual assault and rape by seven male students. The complaint contends that the woman, referred to as Jane Doe, then a 20-year-old student, “was plied with alcohol and drugs to the point of intoxication” at a fraternity house, then sexually assaulted and raped by members of the fraternity. As part of the case, an image of a lewd Snapchat message appears to invite other fraternity members to have sex with the woman.
At the time of the incident, according to Cornell, the university conducted a “thorough Title IX investigation” over several months and issued a range of sanctions, including suspensions and expulsions. A representative of Cornell has said the university supports the reopening of the case, but the university has not provided public comment on details of the lawsuit. Attorneys of at least some of the men named have denied allegations detailed in the lawsuit. New York Gov. Kathy Hochul has now called for an independent review to be conducted of Cornell’s response. No criminal charges have been filed.
Admission by prosecutors that they may have made a mistake, intentionally or not, is a necessary check in our criminal justice system.
This is a hotly contested case, and many facts remain unknown. Only a fair and thorough investigation can determine whether crimes should be charged. The filing of the lawsuit and subsequent reporting by students at the campus paper, The Cornell Daily Sun, ignited a firestorm of outrage and backlash. That firestorm has now led the office of the Tompkins County District Attorney in upstate New York to take the unusual step of reopening a criminal investigation.
In my view, this is too little, too late.
In announcing the reopening of the investigation, District Attorney Matthew Van Houten issued a rare, lengthy public statement, saying that the decision not to pursue charges was based on Jane Doe’s 2024 statement, which “did not allege that she was drugged against her will or gang raped” and in which she “described her participation in drug use and sexual conduct as voluntary, conscious, and consensual.”
There are a number of serious flaws in Van Houten’s response. I say this as someone who has spent over 20 years as a prosecutor at the federal and state level, including four as the DA in Westchester County, where I handled dozens of investigations and prosecutions involving sexual assault, rape and sex trafficking.
Admission by prosecutors that they may have made a mistake, intentionally or not, is a necessary check in our criminal justice system — most of us have had to take that step at some point. But that is not what Van Houten appears to be doing now. In his statement, as well as in several media interviews, he did not acknowledge that he may have made a mistake in not investigating the incident. In one interview, Van Houten agreed that Jane Doe’s allegations in the complaint were “horrific.” He defended the decision not to pursue charges in the first place by appearing to place blame on Jane Doe for not having come forward proactively enough in 2024, or since, with the specific allegations made in her new lawsuit that the sex was not consensual. That, in my view, was the heart of the problem in 2024, and it seems to continue to be the problem now.
According to the DA’s statement and multiple media interviews, Van Houten’s office relied solely on an investigation done by Cornell’s campus police in making its determination not to pursue a criminal investigation in 2024. In fact, the statement says that his office “confirmed with CUPD that criminal charges were not appropriate based on Jane Doe’s statement.” That raises several concerns, including that the CUPD is not a disinterested party in this case.
It is employed by the entity that has a specific interest in the investigation and its outcome. It is also not equipped to conduct a complex, fact-based, sexual assault investigation. A single interview of Jane Doe conducted by CUPD is simply not a legitimate basis to make a determination here. So far, there have been no reports that the CUPD interviewed the men alleged to have been involved or other witnesses, or collected digital or forensic evidence.
Van Houten has said that his office does not “conduct parallel independent investigations of cases alongside police investigations,” and that the “police investigate crimes. The District Attorney’s Office prosecutes crimes.” While that may generally be the practice in his small office (Tompkins County has a total of nine prosecutors, according to its website; for comparison, Westchester’s DA office, over which I presided, had approximately 130 attorneys and dedicated investigators), in many DA offices, trained sex crimes prosecutors are actively involved in these types of investigations — prosecutors like the one the DA now says is overseeing the case. And even for a small prosecutor’s office, there are resources available to assist with complex investigations, such as the New York State Police, which has a Campus Sexual Assault Unit.
The summary of Jane Doe’s 2024 statement shared publicly now by the DA cries out for follow-up in several areas.
In addition, the local Ithaca Police Department (one of several law enforcement partners listed on the DA’s website) said in a statement Monday that it was “disturbed” to hear about the 2024 allegations, which it learned about only recently through the media. The Ithaca PD said that neither the DA nor Cornell had reported the incident to the department.
Even more concerning, the summary of Jane Doe’s 2024 statement shared publicly now by the DA cries out for follow-up in several areas — follow-up that, according to standard best practices, should have been done immediately after the complaint was made, by professionals trained in dealing with survivors of sexual assault and rape and fluent in those kinds of investigations. There is a discrepancy about what, if anything, the CUPD did as follow-up after the initial statement, but two things seem clear: the DA’s office did not reach out to her itself, and she was not interviewed by it.
In her statement, Jane Doe spoke of hiding under the bedsheets for a period of time and described acts that could constitute force. Just because she did not explicitly describe in an initial statement an hourslong incident that she “did not consent” does not render that evidence irrelevant.
New York’s outdated law helped create the mess we see now. Under the state’s rape law, individuals are “mentally incapacitated” and unable to consent to sex if they were drugged or otherwise under the influence involuntarily. Drugging someone to rape them is clearly wrong — but so is taking advantage of someone who became intoxicated by their own doing. In either case, the person is incapable of meaningful consent. While it is of course possible to prove lack of consent (i.e. by statements or conduct on the victim’s behalf) no matter the manner of intoxication, our laws should clearly recognize sex under either circumstance as rape, period.
The New York State Senate has passed a version of a bill to close the “voluntary intoxication loophole” proposed by the New York State District Attorney’s Association and others, but the assembly has not. Such a change in the law may not have ultimately changed the Tompkins County DA’s decision about charging in this case but, without this loophole, prosecutors would, at a minimum, have been more likely to pursue a fuller investigation no matter how the intoxication occurred.
Public outrage made something important happen. Unfortunately, conducting an investigation of this type years later, after multiple witnesses have reportedly been interviewed for the Title IX investigation, and after digital and forensic evidence has likely been lost, makes a meaningful investigation so much more challenging, if not impossible.
And this DA’s public statements about the “discrepancy” in Jane Doe’s account, and his appearing to place blame on her for not having come forward earlier, almost dooms the case before it even begins. You don’t have to be a former DA to understand that. I am not saying that the DA should or should not have charged this case in 2024. I don’t have that answer, and anyone without all of the facts who claims to is doing a disservice to justice right now. However, in my view, the Tompkins County DA’s office failed Jane Doe, the accused and the community in its handling of this case, then and now. One path forward would be for Van Houten to recuse himself from the investigation and ask the court to appoint a special prosecutor in his stead so that Jane Doe, the accused and the public can have more faith in the outcome.
We must continue to advocate to change outdated investigative practices and preconceptions about rape around the country, modernize our criminal laws and give everyone involved — victims and potential defendants alike — the process they are due.
The post I’m a former prosecutor. The Cornell 7 rape case was set up for failure. appeared first on MS NOW.
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