AILSA CHANG, HOST:
New York Attorney General Letitia James is now in charge of a new investigation into an alleged sexual assault at Cornell University in 2024.
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LETITIA JAMES: We will review the facts, gather evidence, interview witnesses and, if warranted, pursue prosecutions.
CHANG: But pursuing prosecutions could be complicated by the law in New York. We're talking specifically about how New York state law considers alcohol or drug use when determining whether there was consent before sexual contact with another person. We've called up Erin Murphy to explain all of this. She's a professor at NYU School of Law and an expert on sexual assault law. Welcome.
ERIN MURPHY: Thank you. It's good to be here.
CHANG: Good to have you. So can you just briefly explain what New York state law says with respect to the issue of consent in a situation where, say, an accuser has voluntarily consumed drugs or voluntarily consumed alcohol before sexual contact with another individual?
MURPHY: Yeah. So when an individual has voluntarily taken drugs or alcohol and is compromised or impaired, the law requires that the prosecutor prove beyond a reasonable doubt that the person was physically helpless. That's the standard - physical helplessness. And the statute in turn defines that as unconsciousness, so loss of consciousness or a physical incapability to communicate unwillingness. So this...
CHANG: Complete loss of consciousness. So let me just picture this. If an accuser...
MURPHY: Yeah.
CHANG: ...Were, say, semi conscious or barely able to walk, but still able to sort of walk or slurring her speech at the time that an alleged assault happened, would that not be enough to qualify as physical helplessness?
MURPHY: Generally, no. There's a requirement of lack of consciousness. And in fact, sometimes in...
CHANG: Wow.
MURPHY: ...Cases, you'll see someone who's passing in and out of consciousness. So they might be, say, vomiting and then back unconscious or kind of - you know, we've all seen someone sort of staggering around or lying, they're moaning. So they're making noises which indicate consciousness, even though we would not think of them as capable of making any kind of decisions. That evidence of just awakeness at any level is often and can be used to show someone is not unconscious and not physically incapable of communication because they are moaning or they are, you know, pushing their hand out or turning their head. The very kind of evidence that you might think shows that someone's not capable of consenting actually shows the contrary under the law of New York, which is - it's someone conscious enough to move to vomit, to, you know, moan, therefore, not unconscious.
CHANG: So in such a case, if someone were going in and out of consciousness, that generally, at least in New York, would not be enough for a prosecutor to bring charges of sexual assault? Is that what you're saying?
MURPHY: It's - yes. There are cases in which...
CHANG: Or be a hard case to prove.
MURPHY: It's - that's what I would say. It's a very hard case to prove. Now, there are cases where you might have evidence that supports the acts of penetration occurring while someone is unconscious during that, you know, or you might have testimony where someone says, I lost consciousness and, you know, awoke to someone penetrating me. That can support a charge, and a jury can find, beyond a reasonable doubt, that the person was physically helpless.
CHANG: Yeah.
MURPHY: But that's a high bar.
CHANG: Absolutely.
MURPHY: And, generally, if you have anyone saying, I never lost full consciousness. I was always awake. I just couldn't really articulate words. I couldn't make my body move the way I wanted it to. You know, that kind of incapacitation is not enough.
CHANG: Well, given the requirements under New York state law and what you know about the particular circumstances and alleged facts in the Cornell case, does it seem like it could be a real challenge for Letitia James to bring criminal charges here?
MURPHY: I think we are going to have to see what the investigation uncovered that we're not aware of and what her investigation further uncovers. Often, in cases like these, there might be physical images, digital images, videos. You might have text chains or even people who come into a grand jury and say, you know, I said, oh, didn't - how did that go down? Didn't they - didn't she fight back? And, you know, the answer is, nah, she was so out of it, she didn't even know where she was. That kind of evidence can support even this high standard of physical helplessness. So depending on what comes through in the investigation, there may actually be enough to charge, even at that high strict standard. But more to the point, I think it's important - and this is a moment in time when there's been such a strong public reaction - to reevaluate the laws on the books and, I think, ask, do these laws reflect what we think they should be? Do they set the standard we think appropriate?
CHANG: It's really given way to this huge conversation around these particular requirements under New York state law, so much so that the governor of New York, Kathy Hochul, has said that she would support an update to New York law when it comes to sexual assault. But how likely is it that New York state lawmakers would agree to overhaul this law?
MURPHY: Well, I would hope that they would take this as an opportunity to do just that. This is not the only state in the country that has a restrictive law like this, but there are many other states that have laws that are more protective of victims in this situation that have standards that would recognize that impairment with alcohol or intoxicants to this degree means that an individual cannot give consent.
CHANG: And if New York state lawmakers were to rewrite the law, could it apply retroactively to this Cornell case?
MURPHY: No, any changes in the law would only apply going forward. And, of course, for the victim in this case, that's, you know, cold comfort. But I would hope that at least, if nothing else, she would understand the role that she played in bringing forward change. And although it was not in place to protect or vindicate her own interests and what happened to her, going forward, it would set a new standard that many people would benefit from.
CHANG: Erin Murphy, professor at NYU School of Law. Thank you very much.
MURPHY: Thank you. Transcript provided by NPR, Copyright NPR.
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