I have several thoughts about the Cornell rape case. Before I turn to them, I want to summarize the case for readers who may not be following it closely. But before that, I want to recognize rape as a serious felonious offense. Rape is sexual intercourse or penetration that occurs without a person’s consent. This can include sex obtained through coercion, physical force, threats, or when a person is incapable of giving consent, such as when unconscious. The precise legal definition varies by jurisdiction, including which acts qualify, how consent is defined, and how the law treats coercion or incapacity. Consent is a tricky matter, as the reader will see.
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The case at hand concerns allegations that a 20-year-old Cornell University student, identified as Jane Doe, was drugged and gang-raped by members of the Chi Phi fraternity at a fraternity house in October 2024. Doe alleges that, after drinking alcohol and being pressured to use ketamine, she became incapacitated while multiple men engaged in sexual acts with her over several hours. Some are denying that this is gang-rape. They contend that what occurred instead is what is popularly known as a gang-bang.
Doe reported the incident to Cornell police in November 2024. A rape kit was administered 18 days after the fact, which makes obtaining useful DNA evidence highly improbable. The local district attorney declined to prosecute, citing information campus police provided, which he said did not establish a prosecutable case. There is a dispute about whether police police properly communicated to the DA that she believed she had been raped when she reported the incident.
Cornell conducted its own investigation, resulting in disciplinary sanctions, including suspensions and expulsions, although the university has not disclosed individual punishments.
Universities use the preponderance-of-the-evidence standard, not beyond reasonable doubt. For this reason, I generally oppose universities handling cases of alleged sexual assault. Rapse is a crime. Criminal justice properly handles criminal cases. Consider the problem of the state pursuing a criminal case wherein the defendants were acquitted. Cornell would have punished men found not guilty of having committed rape.
In September 2026, Doe filed a civil lawsuit against seven fraternity members and the university, and newly reported messages, recordings, and investigative documents have intensified public scrutiny.
The district attorney has subsequently reopened the criminal investigation, and New York Governor Kathy Hochul appointed Attorney General Letitia James as special prosecutor. No charges have been filed.
All seven men named in the lawsuit deny the allegations, and no criminal trial has established Doe’s claims. The men are innocent until proven guilty. And whatever the outcome of the civil case, no crime of rape will have been adjudicated.
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My first thought is, why do we know the names of those accused but not the name of the accuser? A foundational principle of justice is that the accused have a right to confront their accusers. The accused know who Doe is. They were intimate with her. Some of them more than once. But the public doesn’t know Doe’s identity. This means reporters can neither effectively interrogate the veracity of Doe’s claims nor probe her character (to my knowledge, the press are not forbidden to report Doe’s identity). The particular accusation should not negate the principle. Rape is an assault. In what other type of assault case is the accuser a Jane or John Doe?
The short answer is that it is a civil case, and the Sixth Amendment does not apply to civil cases. This still doesn’t explain why we know the identities of those accused but not Doe’s identity. However, the more important question, as alluded to above, is, if a crime occurred, why wasn’t this a criminal case?
A civil trial is about money. Cornell has deep pockets. This rightly raises suspicion about motive for pursuing this case. If the criminal case is reopened, that comes with its own problems (which I will get to). Shouldn’t we wait for that?
TMZ obtained text messages between Jonathan Newell, one of the accused, and Jane Doe from October 21, 2024. Newell apologized for the situation and said he hoped Doe wasn’t facing as much criticism as he and others were. Doe replied that her memories were unclear because everyone involved had been heavily intoxicated. She said she had enjoyed being with Newell and Matthew Ingalls (also accused of rape), and that she did not believe they should feel ashamed of their consensual sexual encounter. “Our body, our choice,” she wrote in one text.
At the same time, Doe also suggested that others present should have left rather than becoming involved. She emphasized that the encounter had originally involved just the three of them in Newell’s bed. She appears unable to remember who the others were or how they were involved. Some who were present deny engaging in sex with Doe. Finally, Doe expressed affection for both men and indicated that she had previously had a similar encounter with them and was open to having sex with them in the future.
The messages suggest that Jane initially viewed the sexual encounter positively, despite her impaired memory, while expressing objections to other people becoming involved. The messages alone do not establish whether everyone involved could meaningfully consent at the time. Assuming consent was impossible under the conditions, some argue these texts don’t matter. What matters is that several men, who were intoxicated themselves, had sex with an intoxicated female. This raises questions about the prevailing consent doctrine.
Shouldn’t the consent doctrine cut both ways? If the accuser did not consent to sex because of alcohol and ketamine intoxication, then, since (at least some of) those accused were also intoxicated using the same chemicals, how could they have consented to sex? If a man cannot consent to sex with a woman, is he not a rape victim? This begs the question: can men be raped? We presume so, even if the victims of rape are much more frequently women than men.
When Doe reached out to one of the men a few days later, she asked him to help her piece together that night. His response was that he, too, was intoxicated and that whatever they were able to come up with together wouldn’t be a trustworthy account.
If he can’t fully recall the evening because he was intoxicated, then how is he not a rape victim—if we grant this is a rape case? Or is there a double standard? In principle, individuals regardless of sex, when accused of a crime, stand equally before the law. Rape statutes do not specify that only women can be victims. The law does not allow for double standards in such cases.
Reopening the criminal case is problematic. The local district attorney originally declined charges in 2024 in part because of a provision in New York law known as the “voluntary intoxication loophole.” Under state law at the time, which is all that matters, since ex post facto laws are constitutionally disallowed, if a person voluntarily consumes drugs or alcohol, it is difficult for prosecutors to prove criminal incapacitation and a lack of consent in a courtroom. How would one know whether Doe consented to group sex and now regrets that choice?
New York State monkeys with the law all the time—most notoriously, the Zombie case against Donald Trump, resulting in a 34-count felony conviction of the then-former President. The judge in that case effectively set aside Trump’s conviction, but, as I have written about on Freedom and Reason, the state pursuing the case in the first place was a travesty of justice. Prevailing law governed the case against Trump. Likewise, prevailing law governed the Cornell case.
Is there anything unusual about Doe’s experience? Not really. Sex parties with multiple partners have been a thing for a very long time. One nationally representative study found that 12% of men and 6.3% of women reported having had group sex (that twice as many men report this as women is an interesting question that I will have to set aside for now). Moreover, group sex often involves intoxicants. This isn’t just a porn thing. Indeed, pornographers got the idea from the real world.
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Is this a case of regret? Post hoc revocation of consent? To be sure, one can withdraw consent at any time—presuming consent were possible—but after the fact? I’m not saying there was no guilty party if it can be established that rape occurred. What I am suggesting is that this case is complex and raises questions about how we think about such cases generally. Even if we grant that most accusations of rape are real, we know that not all of them are. Society should not shy away from the reality of false accusations or regret.
In 1995, in La Crosse, Wisconsin, a 38-year-old Minneapolis exotic dancer alleged that she was raped by multiple New Orleans Saints players at the University of Wisconsin–La Crosse dormitory where the team stayed during training camp. She said she met players after the team’s August 6 preseason game and was invited to a party at the dormitory, where sexual encounters occurred. At least four players reportedly had sexual contact with her. But the players maintained that the encounters were consensual.
After investigating, La Crosse County prosecutors declined to file rape charges, citing inconsistencies in the woman’s accounts and concluding that they did not believe the evidence would establish nonconsent beyond a reasonable doubt.
Readers might also take a look at the case of Crystal Mangum, the former exotic dancer who accused three Duke men’s lacrosse players of rape in 2006. She later confessed to having lied about the encounter. No charges were filed against the men. But why were no charges filed against Mangum for falsely accusing three men of rape?
While the identities of those accused in the Cornell and Duke cases were known and the men were dragged through the dirt, the accused were unidentified in the New Orleans Saints case. Why do we know the identities of any of the accused? Their identities unknown, they could not be tried in the court of public opinion. The obvious answer is that the public has a right to know. So then why is Doe in the Cornell case anonymous?
Anonymity is no small matter. Charges can be dropped. Cases can be dismissed. Defendants can be acquitted. But once falsely accused, what office does one go to restore his reputation? There is no such office. Once accused, a man will be forever stained by the false accusation because there will always be people who reflexively believe alleged victims. Once the names of the men are out there, the damage is done. The process is the punishment.
Moreover, why are those who make false accusations not held accountable for the reputational damage they cause, not to mention the waste of taxpayer resources in pursuing such cases? If an accusation harms a man’s reputation, those who have harmed him should suffer consequences. This would not only deter the accuser from leveling false accusations in the future, but would deter others from making false allegations. Some will say this will have a chilling effect on the victims of sexual assault. So society should let those who bear false witness do so with impunity?
This is why I don’t like the mind-closing slogans like “Believe all victims,” “Believe women,” or “Believe her.” The rational default position is to disbelieve any claim unless the evidence convinces otherwise. There’s nothing special about women that justifies violating the rational position. Women are as capable of lying as are men.
The rational rule is straightforward: the person making the claim must justify her claim with evidence. If a man tells me he was abducted by aliens, I will need evidence before believing his claim, and that evidence better be convincing. Hitchens Razor: extraordinary claims require extraordinary evidence. Without compelling evidence, there is no reason to believe Doe’s accusations.
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Finally, returning to the matter of consent, do we really want to live in a world where consent to have sex must be in writing? I am not being hyperbolic. How else could we know, with no compelling evidence to the contrary, whether consent was obtained without some contract? Obtaining provable consent is not ordinarily how a sexual encounter goes. Humans typically go at such things semiotically; the signs of receptivity are usually rather obvious.
Since, according to doctrine, consent can be withdrawn at any time, should a scribe be present to record when consent is withdrawn? Again, sexual encounters don’t work that way. A man or woman may later regret what he or she did, but this is a risk associated with intimate encounters.
I don’t think many people want sexual encounters to work with legal formalities. Such an imposition takes an interpersonal experience and burdens it with rules that have historically stood outside intimate encounters. And those rules are always changing. How deeply involved in our sex lives do we want the state?
Parents should educate their children to respect boundaries and to honor the wishes of others. If a woman does not wish to have sex, or wishes to stop the encounter in progress, then the man should respect that. He should feel shame for not doing so. The same is true for women, who are also capable of sexual aggression. That some people violate boundaries or refuse to respect the wishes of others should not change the way humans have been having sex for millennia.
As a general rule, we should resist the colonization of our most intimate social relations by bureaucratic rules shaped by particular ideologies. This is a major source of double standards.
In the Cornell case, Doe insisted that those she knowingly and willingly had sex with feel no shame for having participated. With respect to the two men I named, it does not appear they raped Doe. By her own admission, she wanted to have sex with them. As for others allegedly involved, how is one to determine whether she consented in those cases? Moreover, how do we know whether the other men consented to group sex?
As a liberal, I am inclined to tolerate sex among consenting adults in any configuration. Heterosexual sex. Homosexual sex. Bisexual sex. Multiple partners. As long as children are not involved, then what would be the reason the law would forbid it apart from the imposition of a religious framework, which, in a secular society, the state is wont to do? I certainly don’t want religious morality governing my sex life. I also don’t want people to worry that a consensual encounter could later result in an accusation of sexual assault.
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The question of consent bears not only on sex between strangers or acquaintances. For centuries, English common law followed the doctrine that a husband could not legally rape his wife because marriage was treated as implying permanent consent to sexual intercourse. That doctrine influenced American law and remained in place in many jurisdictions well into the twentieth century.
More recently, many jurisdictions created exceptions to the marital exemption before eventually removing it entirely. The crime of marital rape became legally recognized in the United States beginning in 1976, with all 50 states criminalizing it in some form by 1993. That does not mean the law treated marital and nonmarital rape equally at that point, but it did erase implied consent for married couples.
Should a husband or wife always seek consent before having sex? Or does having sex happen organically without a tangle of legal abstractions? Bloodsport debaters Andrew and Rachel Wilson have been entering Internet spaces to record their arrangement about sex in their marriage. Both grant the other permanent implied consent to sexual intercourse. Feminists on the panels scold Rachel for violating the consent rules they’ve established. Rachel responds with the feminist slogan: “Our Body Our Choice.”
Shouldn’t it be the case that, if a married couple agree that each has full access to the other’s body, this should be the prevailing rule? Why should the consent rules of a political-ideological movement govern Andrew and Rachel’s intimate relationship?
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What are we to make of Jane Doe’s invocation of the feminist slogan? It strikes me as paradoxical that the movement for women’s liberation should come with strict rules governing the sexual behaviors of women. Is there something wrong with a woman having sex with multiple men? Perhaps from a given religious standpoint. But religion should have no role in governing the affairs of free men and women.
What should govern rape cases is evidence. Regarding the Cornell situation, there’s a reason prosecutors did not initially bring charges in this case: they did not think it was winnable. Reopening the case strikes me as a political decision.
Protecting the rights of the accused is paramount in a free society. The accused should be presumed innocent. The burden of proof must rest squarely on the accuser. Society must set politics and ideology aside if justice is to prevail. Rape is never okay. But whether a rape has occurred is a matter determined by evidence and circumstances. And it must be determined beyond a reasonable doubt.












