Make New York Post a Preferred Source Prosecutors will face an uphill battle trying to get a conviction in the case against seven Cornell University fraternity brothers accused of drugging and raping a female student — due to the accuser’s evolving account of what happened and tricky New York laws about intoxication and consent, legal experts said.
The woman, identified only as Jane Doe, filed a civil lawsuit last month alleging she was gang raped at the Chi Phi fraternity house while drunk and high on rum, weed and ketamine on Oct. 19, 2024.
However, she didn’t report the alleged rape to campus police until nearly three weeks later, and exchanged text messages with one of the men she is suing after the assault, according to a Title IX investigation conducted by the Ivy League in early 2025.
These are facts that defense attorneys could try to use against her at a criminal trial.
“The defense will use every text message, every inconsistency and every day she waited to report, to attack her credibility,” lawyer Sarah Klein, a former gymnast who was doctor Larry Nassar’s first known victim, told The Post.
“And that’s exactly why so many sexual assault survivors are reluctant to come forward,” Klein said.
Sexual harassment attorney Megan Thomas said that one way for prosecutors to combat defense attacks on the woman’s credibility would be to call an expert to testify about how victims of abuse process trauma, often taking years to reconcile and report what happened to them.
“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.”
Still, Thomas acknowledged the accuser will have a much easier time fighting her case in civil court than in criminal court.
Tompkins County District Attorney Matthew Van Houten initially declined to criminally prosecute the case in 2024, claiming that the six-page statement he was given from Cornell campus police at the time omitted key parts of her recently filed civil lawsuit, including her unequivocal statement that she had been raped.
It also didn’t include the sickening screenshot of a group chat, where the alleged assailants invited others to join in on the assault with the promise of “free p—y.”
But Gov. Kathy Hochul took the probe out of his hands Thursday, appointing New York Attorney General Letitia James as special prosecutor, citing questions about Houten’s handling of the investigation.
Ultimately, the criminal case would hinge on prosecutors proving a lack of consent, Klein said.
Another challenging aspect of the case is the fact that the woman admitted she was drinking and high on weed and ketamine — a fact which complicates things because of New York’s laws on intoxication and consent.
In the Empire State, prosecutors have a high bar to prove a lack of consent in situations where a victim has willingly become intoxicated.
But Klein pointed out that the accuser, “alleges she was pressured into taking ketamine she had never used before, and was repeatedly pushed to take more.
“Whether that was truly ‘voluntary’ is a real question,” she said.
One part of the case that could be favorable to the prosecution, however, is the fact that one of the men posted on a Chi Phi Snapchat group that there was, “free p–sy in alum pu,” referring to the alumni room of the frat house and instructing others to pull up.
“The text messages make clear she was raped,” said defense attorney Pat Harris.
Thomas agreed the message is really bad for 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.
