Two Versions of One Night: What the Cornell Case Reveals About the Law’s Trouble with Consent

2026.10.04 Author: Robert Nogacki

There are two accounts of what happened on the upper floors of the Chi Phi house at Cornell University in the early hours of October 20, 2024, and both speak for the same woman. The first is six pages long, single-spaced, typed by a campus police investigator from her own words nearly four weeks after the fact, read back to her line by line, annotated by her in more than twenty places, and signed beneath a warning that a false statement is a misdemeanor under New York law. The second is a hundred and one pages long, filed by her lawyers on September 16th in the Supreme Court of the State of New York (which, to the confusion of everyone outside the state, is the trial court), and it describes the same night as a drugging and a gang rape that went on for hours. Between the two documents lie twenty-two months, a university disciplinary process, a prosecutor’s decision not to charge anyone, and, as of this week, the intervention of the Governor.

On October 1st, Kathy Hochul took the case away from the Tompkins County District Attorney and handed it to the state’s Attorney General, Letitia James, as special prosecutor. Three days earlier, the District Attorney, Matthew Van Houten, had published a nine-page statement explaining why, in November, 2024, his office had found no crime to charge, and announcing that he was reopening the case and would take it to a grand jury. The explanation fit in one sentence: in her sworn statement, the woman had described her drug use and her sexual conduct as “voluntary, conscious, and consensual.” Two accounts, one unchanged statute, and a question that criminal law has been asking itself for a century: what does consent amount to when the person giving it is drunk, drugged, and surrounded by seven men?

What the Documents Say

The procedural facts are certain; the night is not. On the evening of October 19, 2024, a twenty-year-old student, known in the record as Jane Doe, drank at her sorority house and at two bars downtown, then walked, around eleven, to the Chi Phi house, where a friend lived.

The sworn statement, taken on November 14th and 15th, was built from several hours of interviews by an investigator whom the District Attorney describes as experienced and trained in trauma-informed interviewing. According to the prosecutor’s summary, she rated her intoxication on arrival at “5 out of 10.” She agreed to a threesome with her friend and a second fraternity member, partly out of “drunken curiousness” and partly because she was attracted to the friend. Then came the episodes that fill the rest of the night: a third man, whom she let into the room herself because it was his room; a proposal of a foursome, which she rejected (“Hell No”); the arrival of a group of other men; another line of ketamine, snorted off one man’s body; the question of whether the men could “do drugs off of” her, to which she said “Sure”; a move to a smaller room upstairs; and a final threesome, around 5:45 A.M., that ended when she said she was tired. By then, she rated her intoxication at “8 out of 10.”

The complaint, filed in Manhattan against the university, the fraternity and its national organization, the sorority, a bar that served a woman under twenty-one, and seven former fraternity members, tells it differently. She arrived “visibly intoxicated,” after roughly ten drinks. Two men “pressured” her into snorting ketamine, a drug she had never taken. She was “incapable of consenting” from the first proposition. At 1:42 A.M., one of the men posted to the fraternity’s Snapchat group a crude message announcing that a woman upstairs was available (“Shop still open?” a brother asked later, in an exchange obtained by CBS; “Yea,” came the reply). The men poured lines of ketamine onto her body. By dawn, she was “completely incapacitated,” and then unconscious. None of the seven men has been convicted of anything. Lawyers for two of them deny that their clients took part in any assault; one says that his client submitted to a hair-follicle test that found no ketamine, and that the university’s own process found him not responsible.

Between the statement and the complaint lies a third body of text, and it may be the most important for understanding what happened afterward. Two days after that night, one of the defendants texted her an apology for “how things went down.” His memory, he wrote, was “kinda fuzzy”; he had been too drunk to “shut it down and kick people out.” She answered that her memory was “super clouded too,” that “non(e) of the sexual stuff was illegal,” that she had liked being with him and the other man, and that they should smoke together again, “but like leave out the extra 5 billion men and ketamine.” On October 23rd, she wrote to the friend she had gone to see that night that her “reputation is destroyed” and that she was “utterly ashamed.” On November 3rd, after the fraternity had disinvited her from its Halloween party, she wrote to another of the men: “let’s be clear that 90% of what happened that night was not consensual,” adding that all she remembered after a certain point was his giving her ketamine, and that she had felt “like a sex doll/worker.” On November 7th, she wrote that there were rumors she had been gang-raped. On November 8th: “i know you lied.” That day, she went to the campus police.

In the interview, a transcript of which CBS obtained, she drew a line through the night. Of its beginning, she said she had been O.K. with it, “as much as I can be,” because she was “super drunk.” Of its later hours: “I can say with 100% confidence I was raped.” She also described a calculation that deserves to be remembered. She had become uncomfortable, she said, and thought that if she took ketamine again she might pass out, and that if she passed out and the men had sex with her, “then they could have been charged with rape at this point.”

The sentence about certainty was spoken in the interview but, the District Attorney says, never made it into the signed statement. The sentence about passing out did, as did her observation that the night “felt like coercion”; the prosecutor simply left them out of his public summary. Van Houten says he never saw the transcript, that the campus police, following what the university calls its “established protocol,” sent him only the statement and one Snapchat screenshot, and that the chat, though “disgusting,” had “nothing to do with the issue of consent.” No one from his office interviewed the woman or any of the men. According to NBC, the office did not review the rest of what the campus police had gathered, and records obtained by the Times, reported by CNN on October 3rd, show why: on November 25, 2024, a campus investigator called the District Attorney’s office to offer the additional material, including further interviews and chat messages, and was told that charges would not be pursued. Van Houten later said the records were “not pertinent” because he already had her “comprehensive account.” The university, for its part, first said that its police had shared “all investigatory information” with the prosecutor, then revised that to the statement and the screenshot.

The university, meanwhile, ran its own proceeding under Title IX. Between January and May of 2025, it conducted fifty interviews with thirty-two witnesses and held at least twelve hearings. The outcome, according to Cornell’s president, was that two men were expelled, two were suspended for at least two semesters, one had graduated before a decision came down, and two were found not responsible. The chapter was shut in 2024. The woman left Cornell. At the university’s hearing, she said that she had felt “like bait,” with “lions around me,” and that she had not shown “excitement and enthusiasm, which is kinda the basis of consent.” That last phrase comes straight from the vocabulary of campus consent training, and it will matter.

The prosecutor’s analysis, it has to be said, is formally correct. Section 130.05 of the New York Penal Law makes lack of consent an element of every sex offense and lets it arise in four ways: from forcible compulsion; from incapacity to consent; for the lesser offenses of sexual abuse and forcible touching, from any circumstance in which the victim “does not expressly or impliedly acquiesce”; and, for the lowest grade of rape, from the victim’s having “clearly expressed” that she did not consent, in words or acts a reasonable person in the actor’s position would have understood. Incapacity, in turn, covers two states relevant here. One is physical helplessness, meaning unconsciousness or a physical inability to communicate unwillingness. The other is mental incapacitation, defined in Section 130.00 as a temporary inability to appraise or control one’s conduct owing to an intoxicant “administered to him without his consent.”

The Voluntary-Intoxication Gap

The whole case lives in those last five words. A woman whose drink is spiked is, in New York, incapable of consent. A woman who snorts the ketamine herself, even if she does not know what it is, even if someone urged her to, even if afterward she cannot, in her own words, “make any decisions,” remains capable of consent until she is unconscious or physically unable to say no. The prosecutor wrote as much: the statement did not allege unconsciousness, and a failure to remember events days later is not evidence of unconsciousness at the time. He added that, according to the statement, each time she asked for the sex to stop, it stopped. Measured against the text of the statute, the reasoning is hard to fault. Measured against the purpose of the statute, it is a hole, one that the press and the legislature call the “voluntary intoxication loophole,” and which, according to the Associated Press, exists in New York and in nearly two dozen other states. On October 2nd, Governor Hochul said that “voluntary intoxication is not a license for sexual assault or gang rape,” and backed changing the law, as a group called Justice Without Exclusion has urged in Albany for years.

Seen through psychology, the provision describes not capacity but blame. Pharmacology does not know who handed over the substance: ketamine does the same thing to a brain whether it was snorted at a friend’s urging or dissolved in a drink. The question “who administered it” is a question about whether the woman assumed the risk herself, and it encodes a well-documented bias. A review of research on the attribution of blame in rape cases found that observers assign more responsibility to a victim who had been drinking before the attack than to a sober one, and the more they accept rape myths, the more they do so. New York’s definition of mental incapacitation is therefore not a neutral description of a state of mind but an observer’s prejudice written into the code, which is why it fits so neatly with what police officers, prosecutors, and jurors think about drunk victims, a subject to which we will return.

The closest precedent comes from Minnesota. In March, 2021, that state’s Supreme Court unanimously overturned the conviction of a man who had sex with a woman so drunk that a bar had refused to let her in, because she had got drunk on her own and the statute spoke of substances administered without consent. Justice Paul Thissen wrote that the court applies the statute as written, “and not what we may wish the law was,” and that the legislature was “institutionally better positioned” to make policy. The legislature changed the law in just over three months, effective September 15, 2021. New York, despite a drawer full of bills, never did. The Cornell case is what that delay costs.

One State, Two Definitions

The paradox of the case is that the same state, at the same moment, holds a second and entirely different definition of consent. Since 2015, New York’s Education Law has required every college to adopt a definition of “affirmative consent”: a knowing, voluntary, and mutual decision among all participants, expressed in words or actions, under which “silence or lack of resistance, in and of itself, does not demonstrate consent,” consent to one act is not consent to another, consent may be withdrawn at any time, and a person who, “depending on the degree of intoxication,” cannot knowingly choose is unable to consent at all (Education Law § 6441). Under that definition, the university’s panel found at least four men responsible. Under the Penal Law’s definition, the prosecutor found no crime. Both could be right at once, because they applied different law to the same facts and, no less important, different standards of proof: a campus panel decides by a preponderance of the evidence; a prosecutor must persuade twelve jurors beyond a reasonable doubt.

This duality explains much of the public anger. It also explains something neither side wants to say aloud: both documents could have been written by the same person without a lie in either. Research into how students actually communicate consent shows that they do it mostly nonverbally and indirectly, through behavior rather than question and answer (see the review by Charlene Muehlenhard and her co-authors), so the affirmative standard describes how consent ought to look rather than how it looks. And whether a woman calls her own experience rape depends on the definition she has at hand: work by Zoë Peterson and Charlene Muehlenhard shows that victims are least likely to use the word when the event does not match their own script for rape, and that the label shifts over time.

The woman had been taught, on campus, that consent must be affirmative and that passivity is not consent, while the criminal code that was supposed to protect her, as the prosecutor read it, asked only whether she was conscious and whether anyone had used force. In her text two days after the night and in her signed statement she applied the Penal Law’s definition: “non(e) of the sexual stuff was illegal,” and a rape charge would have required, by her own calculation, unconsciousness. In her text of November 3rd and at the university’s hearing she applied the campus definition: “90% of what happened that night was not consensual,” “bait,” no “excitement and enthusiasm.” Her remark in the interview, that if she passed out “they could have been charged with rape,” shows how precisely a twenty-year-old had internalized the Penal Law. She understood that, as long as she stayed awake and no one held her down, the criminal law, as applied in Tompkins County, had nothing to offer her. Two definitions, one person, no lie; that does not decide the case, but it explains how two documents can both be sincere.

The Same Night, Under Polish Law

Poland, late but decisively, has walked the road on which New York stopped. The law as it stands on October 3, 2026, is this. By an act of June 28, 2024 (Journal of Laws of 2024, item 1228), in force since February 13, 2025, Article 197, Section 1, of the Penal Code (Kodeks karny) was rewritten (the translation is mine): “Whoever, by violence, unlawful threat, deceit, or in any other way despite the lack of that person’s consent, brings another person to sexual intercourse shall be punished by imprisonment for a term of two to fifteen years.” A new Section 1a imposes the same penalty on anyone who brings another person to intercourse “by exploiting that person’s inability to recognize the meaning of the act or to control his or her conduct.” At the same time, Article 198, which carries six months to eight years, now covers the exploitation of helplessness and of a “significant limitation” of that capacity arising from, among other things, “another disturbance of mental functions.” Rape committed jointly with another person remains a felony punishable by three to twenty years (Article 197, Section 3, Point 1).

To grasp the weight of the change, one has to see where Polish law started. Before the war, the Supreme Court (Sąd Najwyższy) required a victim’s resistance to be “continuous, uninterrupted, real, and unfeigned” (rulings of July 14, 1934, I K 254/34, and June 11, 1935, 3K 622/35, cited by Magdalena Budyn-Kulik and Marek Kulik in the commentary edited by Michał Królikowski and Robert Zawłocki, 5th ed., 2023). Behind that requirement stands a model of behavior: a person in danger fights, and one who does not fight consents. The psychology of defensive responses describes instead a sequence of freezing, flight, fight, immobility, and collapse, in which fighting is one option, not the default, and immobility becomes more likely the smaller the chance of escape. Doctrine and case law retreated from the fighting model by degrees. In 1996, the Court of Appeals in Kraków held that “it is an abuse to claim that a raped woman gave herself voluntarily to the perpetrators because she did not defend herself intensely enough,” once she had been cornered (judgment of February 15, 1996, II AKa 2/96), an intuition that the research on multiple-perpetrator rape, named as a distinct offense only in this century, takes as its starting point: the number of attackers is itself a form of coercion.

In 2021, the Supreme Court held that objection must be clearly manifested but need not be repeated throughout, “since the cessation of protest (resistance) is often caused by helplessness and by the perception of one’s situation as hopeless” (order of June 9, 2021, V KK 165/21); the second half of that sentence agrees with what is known about immobility and resignation, while the first does not allow for the fact that freezing can be the response from the first second, especially under surprise, a phenomenon French doctrine calls sidération. The same court, in 2001, had dismissed as “highly imprecise, even internally contradictory” the view that the victim’s state of will alone decides the matter because “lack of consent suffices and need not be coupled with resistance”: lack of consent had to be externalized as real resistance, not necessarily physical (screaming, crying, or calling for help would do), but clearly perceptible to the perpetrator and unambiguous, since a perpetrator might assume that the resistance is not real and is “a form of love play” (judgment of July 26, 2001, V KKN 95/99). The proposition the Supreme Court then found self-contradictory was written into Article 197 by the legislature in 2024.

The “love play” itself, vis haud ingrata in the doctrine, “decorative resistance” in Śliwiński’s phrase, rests on thinner evidence than its Latin name suggests. In a much-cited study from 1988, thirty-nine per cent of college women said that at least once they had said no while meaning yes; when, ten years later, respondents were asked to describe such episodes, most of the narratives did not fit the definition, and the authors concluded that the overwhelming majority of women and men who say no to sex mean no. The phenomenon exists, it is marginal, and it belongs to the mental element, to the question of what the perpetrator knew and what he did to find out, not to the definition of non-consent. The 2024 amendment corrects that placement; it does not remove it, because “love play” will return to the courtroom as the defendant’s mistake about consent (Article 28 § 1 of the Penal Code), as we shall see.

The amendment cuts through this. Since 2025, lack of consent has been an element of the crime in its own right, and the question of resistance has become a question of evidence rather than of definition. Jarosław Warylewski and Katarzyna Nazar, in the newest commentary, edited by Ryszard A. Stefański (8th ed., 2026), note that, compared with the original parliamentary bill (print no. 209), the act kept the existing scope of liability: where violence, threat, or deceit was used, lack of consent need not be proved separately, and what is new is the “other way despite the lack of consent.” The radical “only yes means yes” model from which the bill started therefore did not enter the code in its pure form. What that “other way” covers is contested: Włodzimierz Wróbel reads it broadly (any intercourse without consent), Mikołaj Małecki narrowly (only means whose harmfulness is comparable to violence, threat, and deceit), and Krzysztof Wala offers, as examples, psychological coercion and the exploitation of a state in which a person cannot express her will at all.

Psychology stands on both sides of this dispute. What speaks for Wróbel and Wala is that psychological coercion, group pressure, and the exploitation of submission are real mechanisms for bringing about intercourse without violence. What speaks for Małecki’s caution is another body of research: men, especially after drinking and when they accept rape myths, systematically overestimate women’s sexual interest, and error-management theory explains why that error is the rule rather than the exception. The broader the element, the more cases are decided on the plane of intent, and intent is the hardest thing to prove. Sweden answered with a crime of negligent rape; Poland has none. The commentators also warn of false accusations in divorce litigation and of the unresolved question of the point up to which consent may be withdrawn. The first worry has no Polish numbers behind it, and the Western estimates discussed below concern reports in general; the second is real, because freezing can set in during the act, and then the withdrawal of consent is never spoken. Polish courts are only beginning to decide these questions; there is, as yet, almost no case law under the new Section 1.

Alcohol, Drugs, and Section 1a

Against the Cornell facts, the most interesting Polish line of cases concerns substances. Since the nineteen-seventies, the Supreme Court has held that persuading an adult to drink or to take drugs is not “deceit” if that person understands how the substances work (judgment of September 26, 1974, III KR 105/74). The Court of Appeals in Kraków added, in 2015, that giving someone alcohol before sex is deceit only if the person “does not know its effects” and drinking switches off her “decision-making apparatus” or her “motor apparatus”; giving alcohol “in order to weaken the moral inhibitions of a person who takes it knowingly,” and who ultimately consents, is not deceit, “even if she would not have consented had she not taken those substances” (judgment of September 8, 2015, II AKa 145/15). It sounds almost like the New York loophole. It shares its weakness, too: the criterion is informational (what the person knew before she started drinking), whereas consent is a matter of state (what the person could do at the time). The theory of alcohol myopia describes intoxication as a narrowing of attention to the most immediate cues and a shutting down of the weighing of more distant consequences; general knowledge about alcohol protects no one from that. The division into a “decision-making apparatus” and a “motor apparatus” is binary where impairment is graded: in the classic model of decisional capacity, expressing a choice is only one of four abilities, alongside understanding the information, appreciating one’s own situation, and reasoning, and it can survive the loss of the other three, so that “Sure,” in answer to whether the men could do drugs off her body, is an expressed choice without an appraisal of the situation. The second half of the 2015 ruling is legally coherent and behaviorally naïve: at least half of sexual assaults among college students involve alcohol, and the ethnography of fraternities that described the pattern of a woman “out of it” on alcohol, a room upstairs, and a “train” of men more than thirty years before the Cornell case shows that alcohol is sometimes the instrument, not the circumstance.

The difference from New York lies in what happens next. Where a perpetrator exploits the helplessness of a person who got herself drunk, Polish law never said there was no crime; it said the crime fell under Article 198, with a lighter penalty than rape (Supreme Court judgment of March 16, 2006, IV KK 427/05), and that a perpetrator who deliberately intoxicated a person unable to foresee the effect of what she was being given, in order to have sex with her, was guilty of rape by deceit (Court of Appeals in Kraków, November 6, 2013, II AKa 209/13, a case concerning a girl not yet fifteen). Since February 13, 2025, the difference has grown larger still: exploiting a state in which a person cannot recognize the meaning of the act or control her conduct at all is rape under Section 1a, regardless of who induced that state and how. As Warylewski and Nazar write, Section 1a covers both the inducing of such a state (by administering a drug, say) and the exploitation of a state the perpetrator did not create. Polish law asks about the victim’s capacity; New York law asks who handed over the substance.

The Polish statute therefore asks the right question, and that is where its price begins. Ketamine, a dissociative anesthetic, attacks the appraisal of a situation and the recording of memory while leaving speech and movement intact, as the next section describes; the state in Section 1a, an inability to recognize the meaning of the act, is precisely what the drug does before it takes consciousness away. But there is no biomarker for appraisal at three in the morning two weeks ago. An expert reconstructs the state from behavior described by witnesses who were themselves intoxicated, and does so knowing the outcome; hindsight bias makes what happened seem more predictable than it was. The only record of the night that did not pass through an intoxicated memory is digital: time-stamped messages, on both sides. For that reason, Section 1a will in practice be decided more often by Article 5 § 2 of the Code of Criminal Procedure, the rule that doubts go to the accused, than by an expert. And there is a second limit. The offense remains intentional, so the amendment shifts the definition, and shifts the risk only to the extent that a court consistently applies conditional intent: that the perpetrator accepted the possibility that his partner was unable to decide. Psychology hands the perpetrator a ready excuse, misperception under alcohol, and at the same time the tools to dismantle it, because a mistake fed by alcohol and rape myths is not “excusable” in the sense of Article 28 § 1, and a message announcing that the woman upstairs is available is an externalized state of mind that no myopia explains.

Were a night like the one at Chi Phi, occurring after February 13, 2025, to be judged under the Polish code, and this is strictly a hypothesis, since no court has found any facts, the analysis would break into episodes. The first threesome, at an intoxication of five or six on her own scale, with consent given and the capacity to stop it intact (she was the one who halted it, when her friend fell asleep), would, on the facts of her own statement, be hard to classify as anything but voluntary; the fact that ketamine was new to her would raise the question of deceit, since the case law does not require active lying and treats the exploitation of a person’s ignorance of a substance’s effects as deceit too, but the condition is that the dose switched off her capacity to decide or to resist, and her own statement about this episode does not bear that out. The episodes after the “heavy” dose, at “8 out of 10,” in a state she herself described as the most intoxicated she had ever been and as an inability to make any decision, would have to be examined under Section 1a (inability to recognize the meaning of the act) or Article 198 (significant limitation of that ability), with expert evidence on ketamine.

The arrival of a group of men in a room where she lay naked under the covers, and the message inviting the brothers upstairs, would in Poland be evidence of two things the New York prosecutor deemed irrelevant: of psychological coercion as the “other way” of bringing about intercourse (the cornering described by the Kraków court in 1996; the group as the instrument), and of intent, since a court would struggle to accept that a man who announces to his friends that the woman upstairs is available labored under an excusable mistake about her consent. Finally, the doctrine of co-perpetration, including successive co-perpetration, allows Polish law to attribute joint rape to those who joined an event one after another, for what happened from the moment they joined, under an agreement that may be tacit and with their knowledge of it, without each of them having applied force. Every one of these points, however, would require proof that leaves no doubt to be resolved in the defendant’s favor (Article 5, Section 2, of the Code of Criminal Procedure), and the greatest difficulty would be the same as in New York: the first statement.

What the Mind Records – ketamine and the Blackout

Ketamine is a dissociative anesthetic. A review by Celia Morgan and Valerie Curran found that an acute dose impairs the manipulation of information in working memory and the encoding of events into episodic memory. A person under its influence may be conscious, speak, and respond while forming no memories and losing the sense that what is happening is happening to her. Alcohol does something similar in a blackout. A review by Reagan Wetherill and Kim Fromme describes blackouts as memory loss without loss of consciousness: short-term memory keeps working, so a person holds conversations and performs complex tasks, but nothing passes into long-term storage. Blackouts have been recorded at breath-alcohol concentrations as low as 0.06 grams per deciliter, though most occur at far higher levels, and a blackout may be complete (en bloc) or fragmentary, in which case the gaps can be partly filled by cues.

These two phenomena wreck the New York dichotomy of conscious, therefore capable. The prosecutor is right that forgetting does not prove unconsciousness. Psychology adds that consciousness does not prove the capacity to appraise a situation, and it is capacity, not consciousness, that lies at the core of consent in the Polish Section 1a, in English law, and in New York’s own campus code. The same phenomena complicate the picture on the complainant’s side, though. Fragmentary memories are reconstructed from cues, and the cues may be campus rumors, roommates’ recollections, lawyers’ questions, and one’s own sense of injury. The statement records that she could not remember when she first took ketamine; the texts show that both parties found their memories “clouded.” In a case like this, neither the prosecution nor the defense has a witness whose memory of the decisive minutes is whole. What both have is a clock: time-stamped messages are the only memory of that night that was not under the influence, and it is they, not recollections, that will establish who knew what was happening upstairs, and when.

Freezing, Appeasing, and the Harm That Goes Unnamed

The second phenomenon concerns behavior during the event. A Swedish study of two hundred and ninety-eight women who came to a Stockholm emergency clinic for rape victims found that seventy per cent had experienced significant “tonic immobility” during the assault, and forty-eight per cent an extreme form of it; among those who had frozen, the odds of post-traumatic stress disorder six months later were 2.75 times higher. The passivity of a person who has been cornered is not consent, a proposition Polish courts accepted as early as the nineteen-nineties, even though in 2001 the Supreme Court still demanded real resistance; since 2025 the statute asks not about resistance but about the absence of consent. The Cornell statement, however, records no paralysis. It records something else, which the literature on trauma responses also describes: appeasement, the smoothing over of a situation. She patted the back of a man who was dry-heaving; she woke the one who had fallen asleep; she let the third man in because it was his room; she said “Sure” to the question of whether the men could do drugs off her body; and she devised, in her head, a plan to lose consciousness. In the clinical literature this is the appeasement response, a mammalian answer to entrapment in which cooperating with the stronger party is a survival strategy, not assent; popular psychology calls it “fawning.” A lawyer will see in it what the Polish Supreme Court called helplessness and the perception of one’s situation as hopeless. A defense lawyer will see the opposite: a woman who could say “Hell No” to a foursome, swat away a hand, stop an act, and who was obeyed each time. Both readings are available on the same facts, which is why cases of this kind are won or lost on details rather than on principles.

The third phenomenon concerns the aftermath. A meta-analysis by Laura Wilson and Katherine Miller, covering 5,917 women, found that 60.4 per cent of those whose experiences met the definition of rape did not call them rape, preferring “bad sex” or “miscommunication,” and that the proportion was higher among college students. The Cornell messages trace a course of acknowledgment that this literature would recognize: two days after the night, “nothing was illegal” and a suggestion of meeting again; within days, shame and a ruined reputation; after two weeks, “90% of what happened that night was not consensual” and a woman who felt like “a sex doll”; after nearly three, “i know you lied” and a police report; after six months, “I felt like bait”; after two years, a lawsuit alleging gang rape. The woman’s lawyer speaks of denial and trauma, and of her wanting to find out what had happened and being unable to afford a confrontational tone. That is psychologically plausible. It is also exactly what the defense will call the evolution of a narrative under the influence of friends, therapy, and lawyers with a lawsuit to win.

Honesty requires that the strongest counterargument be heard in full. The November, 2024, statement is, the defense will say, the best evidence that exists in this case: close in time, taken down in her words by an experienced officer trained in interviewing victims, read back and corrected, made in the presence of her advisers, under penalty of law. The complaint was written two years later, in a law office, in the register of “information and belief,” and it asserts things the statement did not, including that she was incapable of consent from the first proposition. In every legal system, an earlier statement that contradicts a later one is used to impeach the witness, and a grand jury, and then perhaps a trial jury, will hear that statement from the defense word for word. Research on false accusations, the most cited of it David Lisak’s, which puts them at between two and ten per cent of reports (in his own sample, eight of a hundred and thirty-six, or 5.9 per cent), and a British Home Office study from 2005, which found about three per cent under strict criteria and about nine per cent as designated by the police, says that such accusations are rare; it does not say they do not exist. A case in which the university cleared two of the seven defendants shows that a collective accusation can land on someone who, according to his lawyer, was in the room for a few minutes. Kat Rosenfield, writing in The Free Press, observes that the court of public opinion has already punished seven men against whom no court has proved anything. That is not an argument for impunity. It is an argument that the gap between two versions of a night should be closed by a trial, not by the press.

The Prosecutor, the University, the Grand Jury

Every participant in this case behaved rationally within its own incentives, and that is what explains the outcome. The District Attorney, an elected official, received one document from the campus police, judged it by the letter of the statute, and, when the campus police offered the rest of the file a few days later, declined it; he conducted no investigation of his own because, as he wrote, “The police investigate crimes. The District Attorney’s Office prosecutes crimes.” For an official, the safest decision is the one that can be defended by the text of a provision, and that is the decision he took. Cassia Spohn and Katharine Tellis, in their study of how rape cases are screened in Los Angeles, found that detectives and prosecutors speak of the “righteous victim”: sober, attacked by a stranger, fighting back, reporting at once. In a multi-jurisdiction study, charges were more likely when the report was prompt and there were no questions about the victim’s “moral character or behavior.” It is the same attributional bias that New York’s legislature wrote into its definition of mental incapacitation. The woman at Cornell is the opposite of that template in every dimension: drunk, on drugs, initially willing, reporting after three weeks, sending one of the men affectionate messages. She is also, as the same research shows, far closer to the typical complainant than to the template.

The university’s incentives ran the other way. Its own police force, its own rulebook, its own standard of proof, and an interest in resolving the matter internally, without the Ithaca Police Department, which, it says, learned of the allegations from the news. An “established protocol” under which campus police send the prosecutor a statement and a screenshot rather than a case file is a mechanism that protects the institution, not the truth, and a prosecutor who declines the rest of the file is a mechanism that protects a decision already taken. The result: four people punished under the Education Law, no one charged under the Penal Law, and then two years of silence, broken by a lawsuit. The Governor received the case at the moment when public opinion had already rendered its verdict, and she responded as a politician does: she removed the prosecutor, saying that the woman had been “failed by people and institutions” obliged to protect her, and gave the case to the Attorney General. The District Attorney had already announced that he would take the case to a grand jury; now the Attorney General will, and in New York it has been said, since the days of Judge Sol Wachtler, that a grand jury will indict a ham sandwich. An indictment, however, is not a verdict. At trial, twelve jurors will hear the statement of November, 2024, the message saying that nothing was illegal, and the definition in Section 130.00 as it stood in October, 2024, because whatever Albany enacts now cannot reach backward to a defendant’s disadvantage. They will be twelve people who, as the research on blame shows, are inclined to hold a drunk victim more responsible than a sober one; in Poland the case would be heard by a professional judge, alone or with lay assessors, which changes the composition of the bench, not its psychology.

Pamplona, Mazan, London, Stockholm

The Cornell case is not an exception but the latest variant of a dispute that other systems have already worked through, each at its own price.

The Spanish case known as La Manada, “the wolf pack,” began in 2016, in Pamplona: five men, an eighteen-year-old woman, the entryway of an apartment building, phone recordings, and a WhatsApp group in which the men boasted. In 2018, a court in Navarre convicted them of “sexual abuse,” not rape, because it found no violence and no intimidation and the woman had not resisted, while the Spanish code required one or the other. Protests swept the country. In June, 2019, the Supreme Court reclassified the acts as rape and raised the sentences to fifteen years, holding that the facts described “a genuine scenario of intimidation” in which the victim never consented, and that demanding heroics of her would be intolerable. Three years later, Spain passed its “only yes means yes” law, built on consent, and here is the second lesson: the statute lowered the minimum sentences, and the principle that the more lenient law applies produced more than a thousand reductions of existing sentences, including, for three of the Pamplona men, from fifteen years to fourteen. Law written under the pressure of outrage is sometimes law that deepens it.

The French case from Mazan was the mirror image. For a decade, Gisèle Pelicot was sedated by her husband and raped by dozens of men, and the old code, with its requirement of “violence, coercion, threat, or surprise,” sufficed, in December, 2024, to convict all fifty-one defendants, forty-seven of them of rape, because unconsciousness was beyond dispute. Even so, on October 29, 2025, the French parliament gave final approval to a law, promulgated on November 6th, that makes the absence of consent the defining element of every sexual assault, rape included: consent must be “freely given, informed, specific, prior, and revocable,” never inferred from silence or lack of response alone. That clause is the statutory form of a phenomenon French doctrine has long called sidération and psychology calls tonic immobility. In July, 2026, the Cour de cassation held that the new definition is a harsher law and cannot be applied to acts committed before it took effect. The same country, more than a year and a half earlier, had joined Germany in blocking, in the Council of the European Union, Article 5 of the Commission’s draft of what became Directive 2024/1385, which would have created a common, consent-based definition of rape, on the ground that the Union lacked the competence. Poland, which amended its own code, did not have to wait.

The English judgment in R v. Bree, from 2007, remains the most candid description of the problem of voluntary intoxication. A nineteen-year-old woman and a twenty-five-year-old man drank together; intercourse followed; she said she had been limp, he said she had “seemed keen.” The Court of Appeal quashed the conviction because the trial judge had not explained to the jury how alcohol bears on the capacity to choose, and it laid down the rule that governs the law of England and Wales to this day: if drink has deprived a person of the capacity to choose, there is no consent; if, despite a great deal of drink, she retained that capacity and exercised it, there is, because “a drunken consent is still consent.” The line between the two states cannot be drawn in blood-alcohol units; it has to be found, case by case, in the facts, and the “capacity to choose” of Bree is the same thing as the model of decisional capacity that Poland’s Section 1a wrote into its code without naming it. Sweden went further and, in 2018, made the absence of voluntary participation the core of the offense, adding a crime of negligent rape, the only answer in this survey to what psychology knows about perpetrators’ misperception. The government’s crime-prevention council, Brå, counted a rise in rape convictions from a hundred and ninety, in 2017, to three hundred and thirty-three, in 2019, though only twelve people were convicted of negligent rape that year, and part of the increase is attributable to extra police resources rather than to the statute. A fuller evaluation published by Brå in 2025 found convictions for rape holding at about three hundred a year since 2019, with the number of convictions that would not have been rape under the old law almost doubled by 2023, and the same evidentiary difficulties as before. The Swedish lesson is therefore probable rather than certain: a consent-based definition raises the number of convictions, but it does not dissolve the problem of proof, which in cases like Cornell’s remains the same under any statute.

What Follows

For a reader in Poland, on whichever side of such a case she or he might one day stand, four conclusions follow.

The first account decides the case more than the statute does. In Poland, the victim of an offense under Article 197 is examined by a court in chambers, with a recording played back at trial, and, as a rule, only once (Article 185c of the Code of Criminal Procedure); an expert psychologist may take part. The design agrees with what is known about memory, since every further interview adds outside information to the recollection. Cornell shows, however, that what counts is not the number of interviews but the frame of the first one: a statement given without a lawyer, in shock, before one understands one’s own situation or which of two definitions of consent one is applying, becomes the defense’s principal instrument. For the same reason, a person facing allegations should neither make a statement nor text the complainant an apology for “how things went down” without legal advice; at Cornell, such messages became evidence for both sides.
Biological evidence is measured in hours and days, not weeks. Ketamine and alcohol leave the blood within hours and the urine within days; traces in hair persist longer and, as one defendant showed, can serve the defense as well. Messages, screenshots, the roster of who was in the room, and the times have the virtue of not changing along with memory.
A changing narrative does not disqualify a complainant, but it has to be explained, ideally by an expert psychologist, before a defense lawyer explains it. A Polish court weighs evidence freely and may find that an account evolved in the way victims’ accounts typically do; it is under no obligation to presume so.
Since February 13, 2025, what Polish law expects of whoever initiates sexual contact has been different from what it expected for the preceding ninety years. The offense is still an intentional one, and consent to one act was never consent to another person or another act. What changed is that lack of consent is now an element in its own right, so that silence and passivity, at least on the prevailing reading of the new provision, can no longer be read as consent, and that a significant limitation of a partner’s capacity to recognize the meaning of the act shifts the risk onto whoever proceeds in the face of it. A message like “Shop still open?” would, in a Polish trial, be evidence of intent, not a circumstance of no consequence.

The Cornell case is not a dispute about which side is lying. It is a dispute about whether criminal law can describe the state between consciousness and the capacity to decide, and about who should bear the risk of that gray zone. For ninety years the law judged consent by behavior that could be seen: resistance. Since 2025 it judges consent by a state of mind that has to be inferred. Psychology justified the change, because resistance turned out to be a poor index of non-consent, and it limits the change’s reach, because a state of mind from two weeks ago cannot be measured.

Robert Nogacki

Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.

The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.

Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.

He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.

Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.

Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.

He believes that the best legal advice is the kind that means the client never has to appear in court.