The Glaring Double Standards In The Cornell ‘Rape’ Case

This is an abridged version of an essay that originally appeared in American Thinker’s subscribers-only newsletter, which contains unique essays from American Thinker’s editors.

Recent allegations about a 2024 fraternity party at Cornell University got me thinking about something that has bothered me for years. It bothered me during the Brock Turner case at Stanford, and it bothers me even more here.

What happens when everyone involved in a sexual encounter is absolutely blitzed? I mean seriously, grotesquely intoxicated on alcohol, drugs, or both.

When it comes to women, we have a clear rule: Intoxication can become so severe that a woman is no longer capable of consenting to sex. An unconscious woman obviously cannot consent, nor can a woman who has lost the ability to understand what is happening or communicate her wishes.

But what about the man?

That’s where we get to an ancient legal concept: mens rea, Latin for “guilty mind.” It is a foundation of criminal law. Generally speaking, committing a criminal act is not enough. For most crimes, the prosecution must also prove the required guilty mental state.

New York law recognizes this principle. Penal Law § 15.05 identifies culpable mental states including intent, knowledge, recklessness, and criminal negligence. And while New York’s first-degree rape statute (Penal Law § 130.35) does not simply say, “Rape is an intentional crime,” New York courts have recognized an intent element in first-degree rape cases.

Penal Law § 15.25 says voluntary intoxication is not a defense to a crime. “But I was drunk” does not get you out of jail. However, extreme intoxication may be considered when relevant to negate an element of the crime. Thus, in People v. Beaty, the appellate court said trial courts could consider whether intoxication prevented a defendant from forming the intent necessary for first-degree rape.

Merely being drunk is not enough. One must be seriously drunk—to the point of barely knowing what one is doing. That begins to sound remarkably like the standard invoked when a woman is said to be incapable of consent.

And that brings us to Cornell.

According to Jane Doe, she had consumed roughly ten alcoholic drinks before arriving at the fraternity house, then continued drinking and voluntarily used ketamine.

Information that emerged late Wednesday after my podcast differs from portions of Doe’s six-page signed statement that the DA released and aligns more closely with her current complaint. According to this recording of her initial police statement, which we’ll take as gospel, she arrived at the fraternity already drunk and willing, but later says she was being hit, became tired, wanted to stop, and eventually gave up as the fraternity brothers kept coming at her. Yuck. Ick. Gross. Very bad.

The problem for me is that at least some of the men were completely hammered, too. According to Doe’s account, multiple participants engaged in “excessive and illegal drug use.” One man was so impaired that he was falling asleep and could not maintain an erection. Another was dry-heaving.

And here is the fact that jumped out at me: At one point, Doe stopped the sexual activity because she was worried about one of the men’s condition.

Think about that.

The woman now portrayed as too intoxicated to exercise meaningful agency was, at least at that point, sufficiently compos mentis to recognize that one man was in worse shape than she was and to intervene.

Adding to the confusion is this text exchange that allegedly took place afterward between Doe and one of the night’s participants:

In one message, one of the men appeared to apologise for “how things went down”.

He said his memory was “kinda fuzzy”, and that he and another man felt bad for being too intoxicated to “shut it down and kick people out before it got way out of hand”.

The woman in the text chain replied saying her memory was “super clouded too” and that they were all intoxicated.

She also wrote that “non(e) of the sexual stuff was illegal” and that she liked being with him and another man.

Doe suggested they smoke together again, but leave out “the extra five billion men and ketamine”.

This speaks not only to Doe’s willingness, but also to impairment on all sides. And yes, I know about the Snapchat messages, which reveal that at least one man was still aware of what was going on. However, even those vile messages about “free” sexual access don’t mean the men intended to rape her. Instead, they speak to a drunken male’s celebratory glee about easy sex.

Given all this, why did Doe cry rape 18 or 19 days later and now via that civil complaint? In my original draft, I wrote that “My bet is that it was only later, when Doe described what she remembered of the consensual debauchery to her friends, that one of them exclaimed, ‘You were raped.’” My guess was close.

It turns out that when word got around Cornell that Doe had participated in an orgy, that was a bridge too far even for a leftist, morally compromised, deviant-sex-obsessed campus (see here and here) like Cornell. While the administration is still pushing weird sex, the students seem to have some archaic moral notions, especially about women. So, Doe was shamed, and the result was that she claimed, against all evidence, that she was raped.

None of this makes that night forgivable. The students at one of the nation’s premier academic institutions were pouring alcohol and ketamine into themselves and engaging in grotesque sexual behavior. In a righteous age, all would be shunned and shamed—not just, as happened initially, the woman and, after the feminists got hold of it, only the men.

But being irresponsible and disgusting is not the same thing as intentionally committing rape or involuntarily becoming a victim.

That is where I see the double standard.

We are perfectly comfortable saying that a woman can voluntarily drink herself into such a state that she loses the mental capacity to consent. But what if the man beside her has voluntarily drunk himself into exactly the same condition?

Why is her intoxication evidence that she lacked mental capacity and moral reasoning, while his intoxication is essentially irrelevant to both?

I understand that consent and criminal intent are legally different concepts. But there is still something profoundly wrong when a woman says “yes,” then later becomes incoherently drunk and is treated as having lost all agency, while an equally incoherently drunk man is treated as a fully competent criminal actor.

That is why I keep coming back to Brock Turner.

Turner was convicted of assault with intent to commit rape and two counts involving sexual penetration of an intoxicated or unconscious person. Chanel Miller was unquestionably unconscious when two Swedish graduate students came upon them.

The problem is that we do not know what happened before she became unconscious or what was going on in Turner’s profoundly intoxicated brain. Both were blitzed almost to the point of alcohol poisoning, yet somehow her intoxication diminishes her agency while his leaves him fully responsible.

Whether at Stanford or Cornell, the narrative is the same: Outrageously intoxicated men and women, but the men are the criminals, and the women are the victims.

Thus, the moral picture on the left, especially among the Lindsay Clancy crowd, has become remarkably simple: Women are treated as people without agency, while men are treated as competent actors.

I am not arguing that intoxication gives men permission to rape women. Obviously it does not. Nor am I arguing that an unconscious woman can consent. Obviously she cannot. And I am certainly not arguing that any of them get a pass. Morally, they are all reprehensible, and practically, I wouldn’t want to be in a room with any of them unless I was wearing a hazmat suit.

Here’s some simple advice: Don’t get grotesquely drunk. Don’t take ketamine or other drugs. And for heaven’s sake, don’t combine the two and then have sex with strangers.

But once people make those terrible choices, the law still has to figure out what happened, and it has to do so consistently. Unfortunately, the leftist mob has no interest in that and will always condemn the men.

(I have been gnawing at this topic like a dog worrying a bone. If you would like to hear more about what I see as the cultural ramifications, check out my video this morning, which examines the God-shaped vacuum the Cornell story exposes, and the worrisome thought that young people might fill it with sharia.)