Why Prosecutors May Face Legal Hurdles in the Cornell Investigation

Experts in sexual assault cases said it may not be easy to win a conviction on the rape allegations that Jane Doe has made against fraternity members.

Since last month, accusations of rape at Cornell University have caused widespread outrage, renewing a national conversation about sexual assault on college campuses and highlighting the difficulty in achieving justice in such cases.

The accusations against seven male students, detailed in a bombshell lawsuit filed by an accuser known as Jane Doe, who was 20 at the time of the encounter, have renewed a national conversation about sexual assault on college campuses.

The men have not been charged, and it is unclear how long an investigation by the special prosecutor, Letitia James, the New York State attorney general, will take. Prosecuting sex crimes presents inherent challenges, and a potential prosecution of the Cornell students faces distinct and considerable hurdles, legal experts say.

Shifts in the accuser's account in the days after the encounter -- while typical for survivors of sexual assault, experts say -- could damage her credibility in front of a potential jury. A report presented by the Cornell Police Department to the Tompkins County, N.Y., district attorney in 2024 left out her claim that she was raped, providing another discrepancy for defense lawyers to seize on.

"Just because a victim's narrative evolves or changes doesn't mean it's untrue," said Moira Penza, a former federal prosecutor. "But grand juries and trials can't stop at 'believe women.'"

Making it harder still are New York's rape laws, which make it difficult for an intoxicated person to prove they did not consent to a sexual encounter. Supporters of sexual assault victims say that the arc of Jane Doe's case shows that the process for reporting such crimes is flawed.

"There's a game of broken telephone that often exists for victims," said Shulim Leifer, an advocate for sexual assault victims in New York. "I think this could be used as a prime example to show where the gaps are in the system."

District attorneys sometimes decline to bring charges or abandon cases involving sexual assault, an issue that came to a head early in the #MeToo movement, highlighted by an initial decision not to prosecute Harvey Weinstein. Sometimes, a victim is unwilling to testify, as occurred in the case involving Kobe Bryant, the former N.B.A. star who was accused of rape in 2003 before charges were dropped the following year.

In her lawsuit, Jane Doe says that she was plied with drugs and alcohol and raped by multiple men on Oct. 19, 2024, at the Chi Phi fraternity house near Cornell's campus. She reported the encounter to Cornell police on Nov. 14, 2024. Using a condensed version of her interviews -- which omitted her claim that she was raped -- the district attorney declined to bring charges.

In the days after the encounter, Jane Doe messaged one of the men whom she would later accuse of rape -- assuring him that "non of the sexual stuff was illegal" -- according to documents reviewed by The New York Times. In November 2024, Jane Doe told Cornell police officials that she was "pretty OK" with the two men she had begun the sexual encounter with, but that as more men showed up looking for sex, she came to understand the encounter as rape.

R. Timothy Jansen, a defense lawyer who represented the football player Jameis Winston, who was accused of rape at Florida State University, said that prosecutors would have a hard time proving Jane Doe's case to a jury. (Prosecutors declined to bring charges against Mr. Winston.) The shifts in the accuser's accounts, as well as the gap between the time of the alleged assault and when the accuser made her report to Cornell police, would prove to be especially damaging, he said.

"A criminal defense lawyer will destroy her on cross-examination," Mr. Jansen said. "The whole case is going to be her credibility."

Jason Goldman, a criminal defense lawyer and former prosecutor in Brooklyn, said the messages Jane Doe sent after the encounter would "be difficult for a jury to square away." But Ms. Penza said that such inconsistencies were not uncommon for sexual assault victims.

"It's the norm, not the exception, for a sex crime victim's initial account to leave out details, describe things non-linearly, and even minimize what happened," Ms. Penza said.

Mimi Rocah, a former federal prosecutor who also served as the Westchester County, N.Y., district attorney from 2021 to 2024, said that a victim's statement may initially be contradictory or confusing for many reasons.

"It could be wandering and all over the place because they suffered a trauma, and they don't know or can't process or express it," Ms. Rocah said. She added that prosecutors cannot just sit down and say, "All right, tell me what happened." District attorney's offices must have the training and sensitivity to investigate sex crimes.

"This is like 101 of trauma-informed interviewing," Ms. Rocah said, "and clearly here that did not happen."

In New York, another challenge lies in the state's rape laws, which Matthew Van Houten, the Tompkins County district attorney, has blamed in part for his decision in 2024 not to prosecute the students who were accused by Jane Doe. (Lawyers for at least three of the men have issued statements denying criminal wrongdoing. In a university investigation in the winter of 2024, the men denied wrongdoing in hours of interviews.)

In her suit filed in September, Jane Doe said she drank copious amounts of alcohol -- including, at one point, 10 drinks in a three-hour period -- and was pressured by the men into taking ketamine, a powerful anesthetic, making her unable to consent to sex.

Under New York's law, people who became intoxicated by their own volition cannot claim they were "mentally incapacitated" and thus unable to consent during a sexual encounter, unless they can prove they were physically helpless.

Proposed legislation would allow third-degree rape to be charged in more instances in which a person was intoxicated. Mr. Leifer, the victims' advocate, supports the new legislation, and said that the current law put an "improper onus" on victims to explain why they were raped.

"There is no manual that anyone gets that says, 'Here's what to do when you are raped,'" Mr. Leifer said.