A civil alleging binge drinking, rampant drugging, and gang rape at Cornell has sparked a firestorm on social media and front-page headlines. The incident occurred two years ago. Since then, the university has investigated the “Cornell Seven”—the seven frat brothers directly involved—and imposed discipline ranging from expulsion to compulsory essay writing. For many, this should never have been a campus matter but one for our criminal justice system. There has been particular ire for the reported criminal law “loophole” that the district attorney claimed tied his hands in this case, preventing initial charges. This is a red herring. Even with the current law, prosecutors had everything they needed to charge the alleged perpetrators in this case and potentially win conviction. Allow me to explain.

Politicians have reacted predictably to this case with claims that criminal law is not tough enough, and prosecutors need more tools. Slamming Tompkins County District Attorney Matthew Van Houten for declining to charge the men, Gov. Kathy Hochul urged the Legislature to “close the loophole” that keeps prosecutors from convicting people who have sex with the intoxicated and the insufficiently participatory.

I recall a time not too long ago when progressives and campus feminists agitated for reducing mass incarceration and the reach of America’s racially biased policing and punishment system. But such institutional concerns evaporate in the face of stories that invoke justifiable outrage against the nauseating misogyny of fraternity culture but also invite gendered ideas about women’s sexual vulnerability, ruination, and squeamishness over sexual impropriety. The impulse to avoid acknowledging that victims chose any part of a harmful sexual encounter produces overbroad criminal laws that leave little room for female sexual agency.

To be clear, there are no intoxication or consent “loopholes” in New York sexual assault law. New York’s regime prohibits forcing others into sex (“rape”), imposing sex against their will (“sexual misconduct”), and having sex with “physically helpless” people (“rape”). If members of the Cornell Seven used force or threats to compel sex, or even just proceeded without Jane Doe’s consent, they committed a crime, regardless of whether she or they were drunk. Contrary to the DA’s analysis, New York law does not require unequivocal verbal refusal for sex to be nonconsensual.

Perusing the DA’s , one readily sees facts that could support charges. Jane Doe, surrounded by larger men, felt intimidated and unable to leave. She swatted hands away and said “no”; she hid under covers and became “9 out of 10” intoxicated. The DA could have brought a criminal case. We need not create a new crime of sex without an “affirmative expression of consent”—one that would render consensual, even desired, but “yes”-less sex criminal—to get at the wrongdoing alleged here.

The same can be said about intoxication. Sex with a person intoxicated to the point of helplessness is already a crime—in fact, first-degree rape. A drunk but conscious person can be “physically helpless” if intoxication leaves them “unable to communicate unwillingness”—a factual determination New York courts have left to the jury.

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Jane Doe had been drinking heavily when she arrived at the frat house, but she was able to consider and agree to the threesome. The epistemic mismatch between her idea of what would transpire and the frat brothers’ is truly tragic. Doe had reportedly intended to hook up with Matthew Ingalls and agreed for Jonathan Newell to join in, “excited” by the prospect that they might be gay. Far from fulfilling a Heated Rivalry fantasy with male friends who “had her back,” she entered a dystopia of manosphere misogyny. Based on Doe’s legal complaint, she became the victim of a fraternity culture bent on getting one over on women as an act of toxic homosocial bonding, as evidenced by a group chat that attempted to reduce her to “free pussy.” Indeed, research finds that college men often have sex they don’t want because of pressure to conform to masculinist norms. Doe’s friends-with-benefits scenario shattered, according to the complaint, as the situation grew increasingly coercive, nonconsensual, and she approached or crossed the threshold into intoxicated helplessness.

Unfortunately, the current conversation, including the call to broaden criminal law, accepts the dyad where a woman is either a complicit “slut” or a helpless, and later ruined, victim. The men’s defenders insist that Doe is the true deviant who eagerly agreed to kinky—even painfully kinky—sex, then lied about it because she was shunned from a party. A strain of “consent to some is consent to all” even runs through the DA’s explanation for his decision not to charge. But the outraged rejoinder has not generally emphasized that women can be sexual agents who agree to some activity and are assaulted in the same encounter, or that unwise and unpleasant but consensual sex is different from, yet can cross into, criminally wrongful sex.

Instead, the lawsuit and many internet pundits deny that Doe had the capacity to make choices at all. She moved through the world requiring protection from drinking, from going to meet a guy she was interested in, and from agreeing to unconventional sex. So eager are online feminists to spare Doe the stigma of the girl in the threesome—a stigma we should be fighting, not reinforcing—that they insist that, despite Doe’s reasonable rationale for agreeing to it, she could not have been thinking straight. Doe herself described the binary, recalling reading an account that she was “gang raped” and thinking, “That’s the first time I had ever heard the narrative change that I wasn’t a whore and that I was assaulted.”

So what exactly do Hochul and company mean by “closing the intoxication loophole”? Do they want to criminalize sex with someone who is intoxicated but appears lucid and able to agree, as Doe initially did? Given that neither a defendant’s own drunkenness nor their reasonable belief that the other consented is a defense, it behooves us to be clear about how drunk is too drunk, because that is the only line that matters. If both parties are sufficiently intoxicated when they have sex, each is a victim and a perpetrator. That both believe the sex was mutually desired is immaterial.

Making intoxicated but not incapacitated sex a crime would grant prosecutors enormous authority, given how often drinking and sexual activity go together, especially among the young. Which groups will constitute the “bad guys” against whom prosecutors wield their newly minted power to prosecute drunk sex—and will they look like the Cornell Seven? Broadening criminal law to encompass widespread sexual behavior should happen only after forthright public debate. It should not be done in a viral reactive moment and couched as merely closing a loophole that doesn’t even exist.

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