The law and politics of the Cornell gang rape investigation

Brian Lehrer (0:05)

From WNYC, I'm Brian Lehrer. This is my Daily Politics Podcast. It's Wednesday, September 30th.

A story many of you have likely been following, the lawsuit against Cornell University, the particular case and what it tells us about how sexual assault is handled on college campuses generally. A note before we begin, this conversation will include descriptions of sexual assault. Earlier this month, a former Cornell student identified for now only as Jane Doe, filed a lawsuit alleging that she was plied with alcohol and drugs and then raped by several men at the Chi-Phi Fraternity House in October of 2024 She is suing seven men, the frat, her own sorority, a local bar, and the university itself, which she says was negligent in how it handled her case. Jane Doe reported the alleged assault to Cornell Police in November of 2024 No criminal charges were filed. Now, almost two years later, her lawsuit has drawn national attention, and the Tompkins County District Attorney there says he is reviewing new evidence. He's also defending his original decision. He told the New York Times that what happened was morally wrong, let's quote, but that the allegations made at the time did not amount to a crime under New York state law. So how can allegations like these fall outside of New York's rape law? What does a university owe a student who reports an alleged sexual assault? Joining us now to help us understand the Cornell case and the state of the federal law, Title IX, in this context is Alexandra Brodsky, Civil Rights Lawyer and author of the book, Sexual Justice, Supporting Victims, Ensuring Due Process and Resisting the Conservative Backlash. Alexandra, thanks for coming on for this. Welcome to WNYC today.

Thanks for having me.

Who does Jane Doe? Well, we know from what I just read, who Jane Doe says is responsible. So let's talk about some of what she alleges here. She reported being raped to Cornell Police in November of 24 The New York Times reports that prosecutors never interviewed her, and the district attorney says his office of nine lawyers relies on the police to investigate. So what did the police do or not do?

Alexandra Brodsky (2:35)

So I think a lot of these details are still coming out because the legal complaint that Jane Doe filed is really focused on what happened at Cornell, what Cornell did both before and after she was assaulted.

But her attorney has been speaking to the press and providing more detail than just the focus of the complaint. And what it seems basically happened is that the Cornell police did a very limited investigation. There's some question about whether their summary of her report accurately reflected her own views, her own account, and then pass that along to the DA who says, well, basically, she said it was consensual, which is very hard to believe based on the limited information we do have about her report to the police. And also just the fact that she went to the police, who goes to the police to tell them, I had consensual sex.

Brian Lehrer (3:38)

Right. And so with respect to the word consensual, in New York, under the law, a person who is, quote, mentally incapacitated, unquote, cannot consent to sex.

Prosecutors say that only applies if you were drugged or intoxicated without your consent. If you drank or took drugs voluntarily, it doesn't count. So just to be clear, is that an accurate reading of the law?

And then how does it apply according to anyone in this case?

Alexandra Brodsky (4:10)

Sure. So, you know, I should give the caveat that I'm a civil rights lawyer. I represent students in civil rights lawsuits, including regarding sexual harassment. I don't practice criminal law, but that is my understanding of the loophole in New York criminal law.

And it's one that advocates have been pushing to close in recent years. And I would hope that this case could help help push that over the legislative finish line. But I think one important thing to note here is that criminal law is only one of the various rules that apply, because Jane was not only seeking justice from the criminal legal system, she had also turned to her school for help. And it appears that Cornell did engage in some kind of disciplinary hearing process. And Jane has also now filed, of course, the civil lawsuit against the men she says assaulted her, and also the various institutions involved. And for the school complaint and for the civil lawsuit, criminal law doesn't apply. So even if the prosecutor ends up not bringing this case to a grand jury, or a jury doesn't indict or convict, it can still be true that the assaults violated Cornell's rules. It appears that Cornell, at least for some of the men, agreed that it did violate its rules.