For the past few weeks, the case of Cornell University’s Jane Doe — who alleges that she was sexually assaulted and raped by seven fellow students in October 2024 — has reignited outrage about sexual assault in America and its occurrence on college campuses.

And while Jane Doe has initiated a civil lawsuit against Cornell, the accused students and others, no criminal charges have been brought.

The accused men have all denied wrongdoing in connection with Jane Doe; three denied having any sexual encounters with her.

In a late-September statement, Tompkins County District Attorney Matthew Van Houten defended his office and explained its decision. After summarizing Jane Doe’s signed, six-page statement to Cornell’s police department, Van Houten said it did not reflect the lack of consent necessary to prove sexual assault under New York’s rape and sexual assault laws.

Van Houten noted that in New York, a victim is considered mentally incapacitated only when she is “incapable of controlling her own conduct due to the administration of a drug without her consent.” Although Jane Doe’s statement reflected “excessive and illegal drug use by multiple participants,” including Doe herself, her statement did not reflect that “any drug was administered to her without her consent,” Van Houten wrote.

Put another way, because his office understood that Jane Doe willingly drank and took ketamine, the district attorney said he could not prove, consistent with New York law, that the alleged assault was nonconsensual.

Unsurprisingly, that feature of New York law — also known as the “intoxication loophole” — has become a focus among those seeking justice for Jane Doe. Earlier this month, Gov. Kathy Hochul, who appointed New York Attorney General Letitia James to handle any further criminal investigation, also publicly pledged to work with state legislators to close that gap.

“If someone is too intoxicated to consent, it should not matter whether they chose to use drugs or alcohol,” Hochul said. “Voluntary intoxication is not a license for sexual assault or gang rape.”

But the so-called intoxication loophole is not a newly identified problem. Sexual assault survivors, advocates and their allies in the New York state Legislature have been pushing to close it since long before Jane Doe enrolled at Cornell.

“It’s a shame it took what happened at Cornell becoming national news for this bill to receive the attention it has always deserved.”

New York State Sen. Natalia Fernandez

Law enforcement officials have also advocated changing the law. For example, in an op-ed published months before Jane Doe’s alleged October 2024 assault, Manhattan District Attorney Alvin Bragg and NOW-NYC President Sonia Ossorio lamented that the loophole presents an “unjustly high bar to hold perpetrators of rape and sexual assault accountable” and suggested it exacerbates the significant underreporting of sexual assault.

Bragg and Ossorio also argued that the loophole “ignores the reality of how sexual assault and rapes happen,” as roughly 80% of sexual assault cases involve an accused and a survivor who know each other, and in 90% of those cases, alcohol is involved.

Asked whether he still supports closing the intoxication loophole, Bragg’s office provided a statement to MS NOW reiterating that the loophole should be eliminated “[d]riven by what we see in our own practice.” Whether a person is drugged without their knowledge or becomes intoxicated voluntarily, Bragg maintains, “the person is incapable of meaningful consent, and our laws should clearly recognize both as rape.”

His counterpart in the Bronx, Darcel Clark, has voiced similarly strong support for closing the loophole, telling MS NOW in a statement, “Voluntarily drinking alcohol never gives anyone permission to exploit those who are too intoxicated to consent. If the evidence shows someone was incapable of communicating or consenting, the law should recognize their vulnerability.”

At least one chamber of New York’s Legislature agrees. Earlier this year, the New York State Senate passed legislation to close the intoxication loophole, as it had in 2020, 2021, 2023, 2024 and 2025. Yet versions of the bill have stalled in the New York State Assembly. The current version of the bill is co-sponsored by nearly 100 members, nearly two-thirds of the entire body. The 2026 session of New York’s Legislature ended June 5.

State Sen. Nathalia Fernandez, who has sponsored the bill in her chamber for the past four years, told MS NOW, “It’s a shame it took what happened at Cornell becoming national news for this bill to receive the attention it has always deserved.”

But it has languished in the Assembly since January 2025. Substantially identical proposals also failed to pass the Assembly in 2023-24 and in the 2021-22 session, despite unanimous committee votes.

The question is who does not want the legislation to pass.

Aside from Assemblywoman Latrice Walker, who has publicly explained her opposition to existing legislation as a function of “cautio[n] about the creation of new laws and our duty to preserve due process protections,” most alleged opponents of the bill have not gone on record.

Battle in the state Legislature

As a Duke University undergrad, Lizzie Asher says she was sexually assaulted by a teacher whose recommendation she was seeking. Now a Harvard-trained lawyer, she co-chairs the Justice Without Exclusion Coalition, a group of nearly 30 services and advocacy organizations that is leading the fight to close the intoxication loophole in New York.

Asher pointed to several reasons why that has not yet happened.

First, she said, Assembly Speaker Carl Heastie is “vehemently against any legislation that would create ‘new crimes.’” Asher finds that rationale unsatisfying. “Rape already exists as a crime, and you are excluding a subset of victims because you are blaming them for what they did before,” she said.

She also noted that the Democratic Socialists of America, which now counts seven members in New York’s Assembly, has an across-the-board decarceration stance, “which aligns perfectly with Heastie’s.”

A spokesperson for the speaker’s office did not respond to MS NOW’s requests for comment. In May, The New York Times reported that Heastie’s spokesperson had declined to state the speaker’s position on the bill.

Lauren Leader, CEO of All In Together, a nonpartisan women’s civic education and leadership organization, also feels Heastie and DSA-affiliated members are responsible for the continued existence of the loophole. “It’s clear that Assembly leadership did not think the intoxication loophole was sufficiently important to prioritize,” Leader said.

But she also believes members associated with the DSA “have outsized power to block votes they don’t agree with even when it’s wildly outside the mainstream.”

Although some DSA-affiliated members, including state Sen. Julia Salazar and Assemblymember Emily Gallagher, supported efforts to close the loophole in prior years, Asher told MS NOW that more recently, DSA members have declined to sponsor the legislation. She noted that when now-New York Mayor Zohran Mamdani was in the Assembly, she attended a meeting with his staff during which they openly told advocates he would not sponsor the bill.

Asked about the mayor’s position on legislation to close the intoxication loophole during his tenure in the Assembly and about that meeting specifically, as well as his current position on pending legislation, Dora Pekec, a senior spokesperson for the mayor, sent MS NOW a statement largely about Jane Doe’s “deeply disturbing and gut-wrenching” case.

She added, “The Mayor supports a full and thorough investigation into not only what happened to this survivor, but into how our laws and institutions must better protect all survivors.”

Asher also pointed to Gabriella Romero, a first-term assemblymember who, according to Asher, scuttled the bill when, in 2025, it passed a key Assembly committee.

Romero’s representatives did not respond to MS NOW’s request for comment.

Others, however, lay the blame primarily on Heastie.

One source familiar with the bill’s status and history spoke to MS NOW on the condition of anonymity to preserve relationships with legislators, and especially Heastie. They explained that often, assemblymembers will publicly sponsor a bill, only to privately oppose it and ask the speaker to help ensure it does not reach the floor.

But here, the person said, the Assembly bill to close the intoxication loophole has the votes to pass. Heastie is known to have a strong and ideological opposition to measures he fears would increase the criminalization of Black and brown men.

In 2024, in defending his refusal to increase sentences for those who attack retail workers, Heastie told reporters, “I just don’t believe raising penalties is ever a deterrent on crime.”

Former state Sen. Alessandra Biaggi, who sponsored the Senate version of the bill before leaving the Legislature in 2022, experienced Heastie’s opposition similarly. “I went toe to toe with Heastie many times about this,” she said.

“It was heartbreaking because there were new cases every year that could not be prosecuted because of the loophole.”

Former New York State Sen. Alessandra Biaggi

“When I said to him, ‘We have to do this,’ he told me, ‘The [public] defenders don’t want this,’” she said.

The New York State Defenders Association submitted its “strong opposition” to lawmakers. In a letter obtained by MS NOW, the organization stated that the legislation would “create a category of sex crimes that are unconstitutionally vague because it fails to give adequate notice of what conduct is prohibited,” adding it would lead to “unjust treatment and arbitrary prosecutions and convictions that have lifelong consequences.”

Similar memos have been circulated by the National Association of Criminal Defense Lawyers and other New York-based legal services organizations.

Biaggi also said Heastie told her ‘the caucus will not go for it,’ referring to a coalition of Black, Asian and Latino legislators. Biaggi said Heastie explained he would not expand the criminal code to enable false accusations against Black and brown men. When Biaggi countered that false reports of rape are extremely rare statistically, she says Heastie remained unmoved.

“He heard every reason and rationale, and he didn’t want to do it,” she said. “It was heartbreaking because there were new cases every year that could not be prosecuted because of the loophole.”

But Biaggi does not blame just Heastie. She says she thinks Jeffrey Dinowitz, a Heastie ally who has served in the Assembly for decades and first introduced the bill to fix the loophole, could convince Heastie to let it pass if it was important enough to Dinowitz, but that apparently, it has not been.

Another source familiar with negotiations over the bill asked not to be named for fear of alienating its advocates. But the person echoed Biaggi’s criticism of Dinowitz, calling him a “paper tiger.” The person said Dinowitz was asked last year to relinquish the sponsorship of the bill to a woman of color to better counter the concerns about the effect on Black and Latino men. He refused.

That source added that Dinowitz chairs the Assembly committee with jurisdiction over his bill, but his office has claimed they are powerless to schedule a vote without permission from the speaker’s office.

Reached for comment, Dinowitz called Biaggi’s characterization “ridiculous” and defended his “diligent and tenacious” stewardship of the bill. Dinowitz also said he was never asked to cede sponsorship of the bill, nor would he do so.

“Most of my colleagues are smart enough to analyze a bill without caring about the gender, race or ethnicity of the sponsor,” Dinowitz said.

He acknowledged having a longstanding, close relationship with the speaker but said he “would be appalled if the speaker brought bills to the floor based on personal relationships.”

Plus, he added, Biaggi “does not know what conversations I’ve had with the speaker.”

“The speaker has never once said to me he opposes the bill. He has said they don’t have quite enough votes yet,” adding, “We want to make sure we have the votes to pass the bill from the Democratic majority.” He also noted that while the speaker controls the scheduling of the votes, there is little point in doing so if the bill lacks support.

But according to memoranda of support obtained by MS NOW, a broad array of organizations and individuals supported the most recent iteration of the bill. The supporters include multiple labor unions, including the AFL-CIO; multiple organizations representing and providing services to survivors of domestic violence and sexual assault; and even a group of Jeffrey Epstein’s survivors and their family members.

Can the loophole be closed?

Yet for all the power centralized in the speaker’s hands, the New York Legislature has met the moment when confronted with other, opinion-shifting tragedies, Biaggi said.

She recalled that in the wake of George Floyd’s death, the Legislature overcame decades of opposition from law enforcement-related groups across the state and repealed the section of New York law that kept police disciplinary records secret. While crossing law enforcement interests had once been unthinkable for Democrats and Republicans alike, the moment became too big for the Legislature to ignore.

She also predicted Jane Doe’s case could similarly change the debate about the intoxication loophole.

On Sept. 30, in the wake of the public outcry over Jane Doe’s case, Heastie formed a “working group” to assess “issues and perspectives surrounding New York’s sexual assault statutes.” That group includes Romero, who told an Albany-based TV station she would approach that work from her “lived experience” as a trial lawyer and public defender, as well as Dinowitz.

“The allegations being reported out of Cornell University are truly horrifying,” Heastie said. “This working group includes a broad cross-section of experience and viewpoints, and I am confident they will thoughtfully consider how best to move forward so that New York’s laws are as strong as possible.”

Supporters of closing the loophole, including Bragg and Ossorio, have countered that the legislation currently on the table “appropriately protects the rights of the accused” by criminalizing those encounters where the alleged offenders “know — or reasonably should have known” that the victims were incapable of consent.

Heastie has implied that any change to New York’s law would not happen this year, stating that his working group is expected to develop “legislative recommendations . . . before the end of the year in order to allow for their full consideration in the 2027 legislative session.”

But will the new year actually bring something new or more of the same?

Two sources familiar with the working group told MS NOW that it already met last week and is expected to meet again this week.

Assemblymember Rebecca Seawright, a co-sponsor of the bill, compared this moment to the aftermath of the Supreme Court’s overturning of Roe v. Wade. The court’s Dobbs decision, she told MS NOW, was the impetus needed to finally pass New York state’s Equal Rights Amendment.

Referencing the public reaction to Jane Doe’s case, Seawright said, “Now is the time to get it done.”

Dinowitz echoed Seawright’s optimism.

“I believe we’re going to get the job done. My job is to get more votes.”

The post Prosecutors say they passed on prosecuting the Cornell 7 due to New York’s “intoxication loophole.” So why hasn’t it been closed? appeared first on MS NOW.

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