Securing a criminal conviction against seven Cornell University fraternity members accused of drugging and sexually assaulting a student could be difficult, legal experts say. The prosecution may face challenges stemming from changes in the woman’s account, her delayed report and New York’s complicated standards surrounding intoxication and consent.
The woman, referred to in court documents as Jane Doe, filed a civil lawsuit last month claiming she was gang-raped at the Chi Phi fraternity house on Oct. 19, 2024, after consuming rum, marijuana and ketamine.
A Title IX investigation conducted by Cornell in early 2025 found that she waited nearly three weeks before reporting the alleged assault to campus police. The investigation also noted that she continued exchanging 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 credibility if the case proceeds to a 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 and the first known accuser of disgraced doctor Larry Nassar, told The Post.
Klein said that strategy is one reason many survivors of sexual assault hesitate to report what happened to them.
Sexual harassment lawyer Megan Thomas said prosecutors could counter those arguments by presenting testimony from a trauma expert. Such a specialist could explain how survivors may process abuse and why some take significant time before they are able to describe or report it.
“I think it is challenging to prosecute criminally, but I don’t think it’s impossible,” Thomas said. “A good expert on trauma can help explain a lot of those text messages.”
Even so, Thomas said the accuser likely faces a less demanding legal path in civil court than prosecutors would encounter in a criminal proceeding.
Tompkins County District Attorney Matthew Van Houten declined to pursue criminal charges in 2024. He said the six-page summary provided by Cornell campus police did not contain important portions of the woman’s newly filed lawsuit, including her direct allegation that she had been raped.
The summary also left out a disturbing screenshot from a group chat in which the alleged attackers purportedly encouraged others to participate by offering “free p—y.”
On Thursday, Gov. Kathy Hochul removed the investigation from Houten’s office and appointed New York Attorney General Letitia James as special prosecutor, pointing to concerns over how the case had been handled.
At the center of any criminal prosecution would be the question of whether prosecutors can prove that the woman did not consent, Klein said.
Her reported use of alcohol, marijuana and ketamine could further complicate the case under New York law, which sets a demanding standard for proving nonconsent when someone voluntarily becomes intoxicated.
In New York, prosecutors often face a particularly high burden when arguing that an intoxicated person was legally incapable of consenting after choosing to consume drugs or alcohol.
Klein noted, however, that the woman claims 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.
A piece of evidence that could aid prosecutors is a message allegedly posted by one of the men in a Chi Phi Snapchat group. It reportedly advertised “free p–sy in alum pu,” a reference to the fraternity’s alumni room, and urged others to come there.
“The text messages make clear she was raped,” defense attorney Pat Harris said.
Thomas likewise said 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.
