The Cornell 7 case is getting a lot of attention on social media. Before I dive in, I want to make clear that I wasn’t there. I don’t know what happened. But I will say that posting “free pussy” in a group chat and having group sex with an inebriated girl is disgusting even if she did consent. Here are my early thoughts on what will happen with the case:
I’m a former prosecutor who now represents victims, including filing civil lawsuits on behalf of rape victims. I believe them, and I understand the psychology of sexual assault and why such a small percentage of perpetrators are ever brought to justice. But when a District Attorney issues a public and detailed statement explaining why your own client’s statement shows she consented to the sexual activity, that’s bad for your case. Now why the DA would take a dump on a civil lawsuit to defend his office is a different question altogether, but maybe he felt there was too much pressure not to explain why he didn’t file charges.
The DA saying the victim consented is a problem because unless you’re a minor or otherwise incapacitated (more on this below), consent is always a defense to sexual activity no matter how gross it is (like in the Diddy trial). So here, Jane Doe’s lawyer needs to argue that her previous statement or the DA’s interpretation thereof was wrong, which will be difficult. The better approach is to argue that Jane Doe was incapable of giving consent because she was in a k-hole or otherwise under the influence of alcohol and ketamine. Ketamine is a tranquilizer and dissociative after all. The defense, of course, will argue that this is regret, not rape, and a money grab. That’s what they always do.
Based on the very limited evidence that has been made public so far, including the civil complaint, Snapchat screenshot, and DA summary of Jane Doe’s statement, I do not think the grand jury indicts, and I do not think we see criminal charges in this case. In fact, I think the DA is presenting the case to the grand jury so they return a no bill and give him political cover for not prosecuting the case. Think Nolan Wells and how the pressure subsided when the grand jury didn’t indict.
With respect to the civil case, I think Cornell has a number of substantive defenses regarding foreseeability, superseding criminal acts, and comparative negligence, but I still think they settle this case quickly, confidentially, and for good money to make the public relations nightmare go away. It’s no secret that drug and alcohol use is rampant at fraternities and sororities, and sexual assault is a huge problem at universities. The last thing Cornell wants is discovery into the steps it takes to protect young women on campus and for talking heads like me to open cable news shows discussing the allegations that one of their former students was gang raped. Once the deep-pocket university settles, the remaining individual and entity defendants will resolve as well.
If this is TLDR, I spoke to
@CNN about the legal strategy in the case by Jane Doe’s lawyer, the defense, and the prosecution.