Searching Below the Outrage at Cornell
If you are following the news (or this blog) it is marked by outrage over the failure of Cornell University to do more to protect its students from sexual assault. As a lawyer, it can be tough to look under the hood of these allegations because journalists are not lawyers and humans enjoy racing to conclusions and assessing blame. After listening to or reading half a dozen news stories, I tried looking for verified facts and found the Jane Doe complaint filed against Cornell and eighteen other defendants two weeks ago.
A word of caution. This is a recitation of what Jane Doe says happened to her on October 19, 2024. She was a sophomore at Cornell and lived in a sorority house. That evening there was a mixer at a local bar sponsored by her sorority. Jane began drinking vodka before the event. At 8:30 pm she ubered to the bar with a woman identified as the sorority’s “house mother.” She was too young to be served and was given a wristband noting her ineligibility to consume. She did anyway although the sorority had designated people at the bar to monitor what people drank. At 10 PM Jane and another moved on to a second bar where she was again “banded” as underage. At 11PM, having consumed “at least 10 standard drinks,” she left that bar and walked alone to the fraternity house where she was assaulted. The complaint acknowledges she was visibly intoxicated.
It appears that Jane was looking for one specific member of the fraternity. He greeted her and gave her a beer. They danced. Her host then suggested they have sex with another fraternity member. The two went upstairs where her host left her with another fraternity member and then took her into a room with a third member. The complaint avers that Jane was in no condition to consent to anything. The two men began using ketamine and encouraged her to join them. She did. The men also “plied” her with marijuana and rum. Soon after, the two men began having sex with her. The man Jane came to visit left and when the other man continued to promote more sex, Jane pushed him away. Then a third man appeared and began having sex with Jane, again without her consent. At 1:42 AM one of the men sent a text message to the fraternity that a woman was available for sex. The complaint has a photo of the text message. Other men arrived. Paragraph 166 of the pleading says: “ [Jane’s] phone was on the other side of the room and she felt as if there was no way to escape this room full of predatory fraternity men.” She was next told to snort ketamine rubbed onto the phallus of one of the men. She complied. Next, seven men put ketamine on her body and snorted it. Later two men took her to another room in the fraternity where they told her to snort ketamine they provided. She did. The men then initiated what is described as another sexual assault. At 5:45AM Jane lost consciousness. When she awakened she returned to her sorority residence.
When Jane awakened on October 20, she learned that the men who were with her had told others in the Cornell community of what had occurred. Eighteen days later, Jane notified the campus police department. The fraternity was suspended later that day. On November 26 Cornell issued a statement indicating it had also suspended two students.
Here is the complaint:. Civil Suit Filed Over Alleged Cornell Fraternity Sexual Assault .
While the campus police are imbued with police powers by New York, they are employed by a university which does not benefit from reports of campus sexual assaults. That’s a problem. But Jane will face challenges in this lawsuit. Here are portions of the statement she gave police in November 2024. Cornell Seven: How Jane Doe’s Police Statement Differs. This statement reveals that despite the alcohol she had consumed at the sorority events she walked a mile to the fraternity house. She acknowledged that the first sexual threesome was consensual. When a third man arrived she greeted him. At this point the man whom she had first sought out fell asleep. It appears that after initially resisting the physical overtures of the third man in the room she had consensual sex with him as well. In her statement, she seems firm that when the man she first sought to meet inquired about resuming sex with now three men, she refused. One of the participants left but then four different men entered the room. Jane states she hid under a blanket as she was disrobed.
The introduction of the other men was less welcome than earlier and Jane resisted some of their overtures. But she was offered ketamine and decided she would take it. One of the men offered that she could snort the substance from his body and she agreed. Then the men asked if they could do the same with her body. Again, the statement indicates she acceded to this. As this was happening another person intervened and said he was “shutting this down.” Jane chose to leave with two of the men and go to another room where they resumed ingesting ketamine. When the men suggested resuming sex, she was resistant but then consented. She believed they continued to have sex until 5:45AM when she said she wanted to sleep. They relented.
If there is a prosecution or civil trial, the focus will be on the 1:42 AM invitation for others to have sex. No one can deny the cruelty of that. But, identifying what sex, if any, Jane Doe did or could consent to is a question that ranges over 6 hours, from her arrival at the fraternity house until she said she asked to be allowed to sleep at 5:45AM.
In a statement issued on Monday (9/28), the district attorney concludes:
“The facts provided by Jane Doe’s statement do not allege that she was rendered unconscious. While the statement unquestionably describes excessive and illegal drug use by multiple participants and the effects on those participants such as falling asleep, dry heaving, and dizziness (of Jane Doe), there is no evidence in the statement that Jane Doe was unconsciousness or unable to communicate. (The failure to remember certain events days later is not sufficient evidence of unconsciousness at the time.) Finally, there is no evidence in Jane Doe’s statement indicating that she clearly expressed that she did not consent to the act. According to the statement, each time Jane Doe asked to stop the sexual conduct, the sexual conduct stopped. Thus, with no evidence of a “lack of consent,” criminal charges simply could not be sustained.”
We write about this because it’s the beginning of a new college year. Each year we send our kids into this new world hoping they will become better for the experience. But there are dark places in that new world and young people like to experiment both with substances and relationships. Mixing the two is especially dangerous in a setting where men and women live on the same campus.
We are now immersed in a blame game. But I have a challenge to offer. Jane is your daughter and you have a Flock camera in Ithaca so you can watch her. You see your daughter inebriated and making her way to a fraternity house. You call campus security and ask them to intervene. They ask your kid’s age. She is an adult. They inform you that they have no right to interrupt her walk. Ironically, they could arrest her for being drunk and disorderly. But once she enters a building owned by a fraternity or a room leased to another student the cops have no right to enter without consent or to interrupt a crime in progress. Your best hope would be to call her on her phone and hope that your call might take precedence over an attractive man of her age.
One more hypo. You are the President of Cornell. Jane is your best friend’s child. You see Jane drunk and wandering to a fraternity house late at night. What power have you to intervene with this sui juris adult? What right do you have to see what is going on inside a private fraternity? Ironically, if the statement held by the police is correct, someone did intervene. Jane and two of her companions relocated and resumed.
Sadly, there are only two certain options. Train your kid to avoid trouble and pray that common sense prevails over perceived physical and emotional attraction. There are more than 5,000 colleges in the United States. All are vulnerable to what happened two years ago at Cornell. We saw this a decade ago at the University of Virginia and not much has changed. A Rape on Campus – Wikipedia. The facts of Doe v. Cornell will have to play out. But, there is no bright line that reveals when sexual conduct is consensual and when it is not.
Nota bene: Arizona frat president convicted of felony hazing in death of a pledge induced to drink huge quantities of vodka. Ex-fraternity leader jailed after pledge died of alcohol poisoning