Prosecutors could face significant hurdles in securing convictions against seven Cornell University fraternity members accused of drugging and raping a female student, legal experts said. The case may turn on the accuser’s changing account, the timing of her report and New York’s complicated rules governing intoxication and consent.
The woman, identified in court filings as Jane Doe, sued the men last month, alleging that she was gang-raped at the Chi Phi fraternity house on Oct. 19, 2024, while intoxicated and high after consuming rum, marijuana and ketamine.
According to a 2025 Title IX investigation by Cornell, she waited nearly three weeks before reporting the alleged assault to campus police. She also exchanged text messages with one of the men named in her lawsuit after the incident.
Defense lawyers could point to those details in an effort to cast doubt on her account if the case proceeds to criminal trial.
“The defense will use every text message, every inconsistency and every day she waited to report, to attack her credibility,” attorney Sarah Klein, a former gymnast who was the first known victim to come forward publicly against physician Larry Nassar, told The Post.
“And that’s exactly why so many sexual assault survivors are reluctant to come forward,” Klein said.
Sexual harassment lawyer Megan Thomas said prosecutors could counter those attacks by calling an expert witness to explain how trauma can affect a survivor’s memory, behavior and willingness to report abuse. Some victims, she noted, may need years to process what happened.
“I think it is challenging to prosecute criminally, but I don’t think it’s impossible,” Thomas said. “And here’s why: I think a good expert on trauma can help explain a lot of those text messages.”
Even so, Thomas acknowledged that Doe may have a more straightforward path in civil court than in a criminal prosecution, where the burden of proof is substantially higher.
Tompkins County District Attorney Matthew Van Houten declined to pursue criminal charges in 2024, saying the six-page summary he received from Cornell campus police left out important elements of Doe’s newly filed civil complaint, including her explicit statement that she had been raped.
The material also reportedly omitted a disturbing group-chat screenshot in which the alleged attackers invited others to participate, offering “free p—y.”
Gov. Kathy Hochul removed the investigation from Van Houten’s office Thursday, appointing New York Attorney General Letitia James as special prosecutor amid questions about how the case had been handled.
At the center of any criminal prosecution will be the question of whether prosecutors can prove that Doe did not consent, Klein said.
The allegations are further complicated by Doe’s account that she had been drinking and was high on marijuana and ketamine. New York’s laws concerning intoxication and sexual consent can make such cases particularly difficult to prosecute.
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In New York, prosecutors face a demanding burden when attempting to establish that a person was unable to consent after voluntarily becoming intoxicated.
Klein noted, however, that Doe alleges she was pressured to take ketamine, a drug she had never previously used, and was repeatedly urged to consume more.
“Whether that was truly ‘voluntary’ is a real question,” Klein said.
One piece of evidence that could assist prosecutors is a Snapchat post allegedly made by one of the men in a Chi Phi group. The message referred to “free p–sy in alum pu,” a reference to the fraternity house’s alumni room, and encouraged others to come there.
“The text messages make clear she was raped,” defense attorney Pat Harris said.
Thomas agreed that the message could prove highly damaging to the defendants.
“As bad as her changing her stories is, which again is totally consistent with trauma, it is so much worse to see these [free p–sy] text messages, and that’s a way worse burden,” Thomas said.
On the other hand, prosecutors also could face a hurdle in proving which of the men raped the accuser, as the defendants will surely use their numbers to claim they weren’t involved, Harris said.
“They are going to have a very difficult time proving which guys were involved because the woman says she was passed out,” Harris said.
“Clearly, every guy involved is going to argue they didn’t do anything other than be there at the party.
“It is not going to be hard to prove that she was gang-raped — it is going to be very hard to prove who did it.”
The university conducted an extensive Title IX investigation into her claims that spanned months and included 12 days of hearings with testimony from over 50 witnesses.
It culminated in a 100-page findings report that doled out expulsions, suspensions, and slap-on-the-wrist for the various men involved — including “reflective essays.”
The school also permanently banned the Chi Phi fraternity chapter.