The 'Cornell Seven' loophole is a red herring: existing New York law already covers the alleged conduct, and broadening it would over-criminalize common sexual behavior
Source: Aya Gruber. "Kathy Hochul says New York needs to close the “Cornell Seven” loophole. That’s false.." October 9, 2026. slate.com
The Gist
The author argues that New York's laws already make the alleged conduct in the Cornell case a crime, so there is no 'loophole' to close. The DA could have brought charges, and passing broader laws about drunk sex would criminalize a lot of ordinary behavior and rely on outdated ideas about women. Any such change should come after real public debate, not in the heat of a viral story.
Conclusion
Gov. Hochul's call to 'close the loophole' in New York sexual assault law is misguided because no such intoxication or consent loophole exists; prosecutors could have charged the Cornell Seven under current law, and expanding criminal law to cover intoxicated-but-not-incapacitated sex should not be done reactively without thorough public debate.
Premises
- New York law already criminalizes forcible sex, sex against a person's will (including without consent, regardless of whether anyone was drunk), and sex with a 'physically helpless' person, which includes a conscious but intoxicated person unable to communicate unwillingness.
- New York law does not require unequivocal verbal refusal for sex to be nonconsensual, so the DA's stated reasoning misapplies the law.
- The facts the DA himself cited (Jane Doe felt intimidated and unable to leave, swatted hands away, said 'no', hid under covers, and was highly intoxicated) could have supported criminal charges and potentially a conviction.
- Calls for new laws, such as affirmative-consent or broader intoxication crimes, rest on a binary view of women as either complicit 'sluts' or helpless victims, denying women's sexual agency and the possibility that someone can consent to some activity and still be assaulted in the same encounter.
- Because neither a defendant's own intoxication nor a reasonable belief in consent is a defense, criminalizing sex with someone who is intoxicated but not incapacitated would sweep in widespread, often mutual sexual behavior, especially among the young, and give prosecutors enormous discretion over who gets prosecuted.
Assumptions
- The DA's decision not to charge reflected a misreading or reluctance to apply existing law rather than a genuine evidentiary or legal barrier.
- The factual allegations in Doe's complaint and the DA's summary are accurate enough to support charges.
- A jury could plausibly find that Doe was 'physically helpless' or that she did not consent given the described circumstances.
- Prosecutorial discretion in a broadened law would be applied unevenly or unjustly, and the harms of over-criminalization outweigh the benefits of easier convictions.
- Hochul's 'loophole' refers to either an affirmative-consent standard or criminalizing intoxicated-but-capable sex, and not to some specific statutory gap the author did not address.
- Major legal changes should follow deliberate public debate rather than responding to viral cases.