The Cornell Seven case is not about Rape

It’s about the nonsense society teaches kids about “consent”.

For most of the past twenty years, if not longer, almost the entirety of the discourse around male/female sexual interactions has been based on a single word: Consent.

Consent is a magic word. Almost anything goes, so long as all parties are in agreement with it and happy to participate at the time the act or acts are taking place.

Consent does not preclude regret: You can consent to something today and regret it tomorrow. All that consent does – which is why it is a terrible standard, in my view – is set a legal rule about whether something is allowed, or has crossed the line into sexual assault or rape.

Consent is now at issue in what is set to be one of those American cases. You know the ones: You’re going to hear about them whether you like it or not. In a week or so there’ll be columns in the Irish Papers about the case, and everyone will be on the radio giving their opinion. The case in question is the Cornell/Fraternity Rape case. Or the Cornell Seven, for short.

Here’s what happened:

On the Night of October 19^th 2024, a young woman who, in American fashion, is now called “Jane Doe”, met a guy on a night out and went back to his fraternity house. While there, the young man asked her if she would like to have a threesome with him (man 1) and his friend (man 2). Jane Doe agreed and gave consent. Upstairs they went, and, well, cue the crappy music.

After exerting himself, Man 1 fell asleep. At this point or shortly thereafter, Man 3 – a friend of Man 2 – entered the room and after some conversation, Jane Doe had a second consensual threesome with 2 and 3 while Man 1 slept. Following that, Man 3 apparently sent a text to other male residents in the house which referred to events in the room using the words “free p*ssy”.

At this point, men 4, 5, 6 and 7 entered the room. In her sworn statement, Jane Doe says that she was reluctant, scared, and felt “completely numb to the whole situation”. She also says that she considered taking Ketamine – more Ketamine to be precise – in the hope that she might pass out and avoid having further sex with the men in question. Further, at least one of the men said to the others that they should stop. And when Jane Doe directly asked for the sex to stop, stop it did.

Three weeks later, she gave a statement to the University Police, who passed it on to the prosecutors. The prosecutors declined to charge, saying that the six-page sworn statement supplied to them did not identify sexual activity continuing after Jane Doe had clearly withdrawn consent, and did not establish the kind of incapacity required for a criminal prosecution.

Now, this has transformed into political scandal: Jane Doe is taking a civil case. The Governor of New York has given multiple press conferences. There are calls for the University Authorities to resign. There is – to use the vernacular – absolute war and carnage on TikTok, with young women essentially declaring war on behalf of Jane Doe. The Patriarchy, in short, has struck again.

What to make of this?

The first thing to say is that the behaviour of the six men in question was by any objective or traditional moral standard, abominable. At the very least, they took advantage of an intoxicated – the degree of intoxication being in dispute – young woman.

But objective and traditional moral standards are not the same as the law. The law, and western culture for years, has defined rape and sexual assault by a very simple metric: Consent.

And there’s a further double standard here: On the one hand, society declares that women are entirely equal people with their own agency who are competent and confident in making their own decisions. On the other hand, it places immense responsibility on men, in precisely these kinds of situations, to make decisions for women. Jane Doe’s police statement says that she was feeling completely numb; It says she was “disassociating from the situation”. It mentions that she felt coerced. It does not say that she said “no”.

Society tries to get around situations like this by going back to the intoxication point: She wasn’t in any fit state to give consent. Now reader, I don’t know: I was not there and had I been there I certainly would not have been in that room. But the bigger point is that this is a cop-out: Certainly there are situations where people are unable to give consent, but the bigger problem is that consent is the standard taught to young people about how to conduct themselves.

Consent is what creates these grey area cases that drive people bonkers.

I’ll say here what George Hook got sacked for saying: If you are a young woman and go to a frat house full of men and consent to not one but two threesomes while high on Ketamine, you’ve made a bad choice. One that makes you objectively less safe.

Equally: if you are a young man and find a group of your friends engaging in group sex with a woman you do not know and have never spoken to, and decide “I’ll join in here”, then you’ve made a bad choice that has made both you, and the woman, and your friends objectively less safe.

The fallout here – all the battle over did she or did she not consent – is about something much more fundamental. It’s a proxy battle over who behaved worse, or more stupidly. And who should get punished.

One of the biggest problems here is that Jane Doe undoubtedly and understandably feels as if a crime has been committed against her because she feels as if her life was harmed by the events of that evening. And of course, feeling as if you have been harmed creates a reciprocal demand for justice – Men 1-7 should, in Jane Doe’s eyes and those of many of her supporters – receive harm to their lives in kind, in the form of judicial punishment and shaming and perhaps jail time.

But, and here’s the problem: when she talked to Cornell University Police she at no point stated that she denied consent for anything that happened. And under the narrow reading of her signed statement adopted by the prosecutors, the law offered her no obvious route from ‘I bitterly regret and feel violated by what happened’ to ‘these men committed rape’. Those are not the same thing.

Everyone can look at that room and think: Something has gone horribly wrong here. But the only legal framework we’ve all been taught then insists upon answering the question almost exclusively by asking: at precisely which moment did consent cease to exist? Or did it?

I’ll say this and this only for the seven men: I have no idea how they were supposed to know the answer to that question.

These debates about the relationship between men and women are fundamentally based on the nonsensical notion that men and women are the same. That they play by the same rules. That what works for one works for another. Over and over again, young people are becoming victims of that notion.

In this case, seven lives are in the process of being ruined. And yet, it seems to me that nobody in this case can be definitively shown to have broken the very golden rule – consent – that we’re told prevents these things from happening.

Perhaps that rule needs some re-thinking.