The Uphill Legal Battle for Cornell Victim

Brian Lehrer (0:10)

It's The Brian Lehrer Show on WNYC. Good morning again.

We are coming back to the Cornell rape case now, and we're going to look specifically at the legal challenges ahead for New York's Attorney General who's now in charge of the criminal investigation into an alleged gang rape at the Cornell Fraternity House, a Cornell Fraternity House in October of 2024

Governor Kathy Hochul appointed Attorney General Letitia James as Special Prosecutor saying newly released information raised serious questions about how Cornell Police and the Tompkins County District Attorney handled it. So she took it away from the local DA, as many of you know, and gave it to the state AG. Now, even amidst these changes on who is prosecuting the case or investigating it to determine if a prosecution is needed, a lot of legal experts are saying that this case will be an uphill battle for any prosecutor. And this is despite and in some parts because of the many known pitfalls and mistakes made along the way, perhaps by the DA's office, perhaps by the Cornell Police Department, perhaps by the university itself as an institution, you know, outside the police department there. With me now is Santul Nerkar, a reporter at The New York Times who normally covers federal courts in Brooklyn. He's been covering the Cornell investigation. A few days ago, he published the piece, Why Prosecutors May Face Legal Hurtles in the Cornell Investigation. Santul, thanks for joining us. Welcome to WNYC today.

Santul Nerkar (1:49)

Thanks so much for having me, Brian.

Brian Lehrer (1:51)

Now, of course, Jane Doe, the anonymous victim in the case is not the one under investigation or who may go on trial. Sometimes, it can feel like that in these kinds of stories. But can you break down for us exactly who is under investigation by the state attorney general?

Santul Nerkar (2:14)

That's right, Brian. So what we know so far is that the state attorney general has taken over this case from the Tompkins County District Attorney, and the details right now are, we don't exactly know. We know that presumably the seven people who were accused of assault in Jane Doe's lawsuit filed last month are under investigation. But the attorney general also has the broad prerogative to expand the investigation as she sees fit.

In theory, she could bring charges against more than just the seven people who are named. So that is all very unclear. And I sort of want to emphasize that she's still investigating the nature of these allegations, and it is entirely possible that no charges are brought.

Brian Lehrer (3:03)

Right. So what would she have to prove? Because I think your article notes that one of the challenges here is to go beyond whether Letitia James thinks crimes were committed, to whether she thinks they can prove them beyond a doubt, a reasonable doubt to a jury, a unanimous jury.

Santul Nerkar (3:28)

Right. So one way of looking at it is looking at the present of New York's rape law. Right. And obviously this has been the topic of discussion for quite some time now, and has really, there's been a sort of a spotlight put on it over the last couple of weeks. And under New York's rape law, people who are intoxicated by their own volition, which according to court papers and by Jane Doe's own account, she became intoxicated by her own volition. And proving that you were incapacitated to the point where you could not consent is an uphill battle under New York's rape laws. You basically have to show that you were physically helpless. So one way of thinking about this is that, if she investigates and finds that there's good evidence of that, she would have to convince a grand jury that Jane Doe was, in fact, incapacitated to the point where she could not consent.

Another sort of hurdle to clear, if the AG thinks a crime has been committed, is convincing jurors of the idea that Jane Doe, that there are certain perhaps shifts in her story that have come about over the last couple of years. Which, to be clear, experts and advocates for sexual assault victims say are completely normal but may be difficult to prove to a jury nonetheless.

Brian Lehrer (4:54)

What are some of the most important shifts in her story over time that the defense and any prosecution might use?

Santul Nerkar (5:04)

So one important shift, I would say, is that her own view of whether, of what she consented to seems to have changed. So in the account that she gave Cornell Police in 2024, she did say that she was raped.

But she indicated that she had started the night essentially agreeing to have sex with two of the seven men who were accused in the lawsuit eventually. In the lawsuit she filed last month, she essentially says that she was coerced into having sex even with those two men themselves. So again, I want to emphasize that that change is not unusual for somebody who is a victim of rape, of sexual assault. But it is something that a criminal defense lawyer could easily seize on and say, there's inconsistencies here. So that's one major thing. Another, and I don't know if I would necessarily cause the shift, but a defense lawyer could point to the fact that she did text a couple of the people who were involved in the encounter, according to her, after the fact and said that nothing legal had happened.