The Thorny Problem of Consent: Cornell, Clavicular, and Indiana’s Rape Statute
Consent is the line between ordinary intimacy and one of the most serious felonies in the criminal code, and the law still has trouble saying exactly where that line sits. Two cases in the headlines this fall show why. In one, a New York prosecutor considered allegations of a fraternity gang rape and concluded the complainant had consented. In the other, Massachusetts prosecutors charged a 20-year-old internet celebrity with raping a 17-year-old who says she was too drunk to consent and woke up to find him having sex with her.
Both cases turn on the same difficult question: what does it mean to be able to say yes, and who decides after the fact whether someone did? Indiana answers that question differently than New York or Massachusetts, and in some ways it doesn’t answer it at all. Our rape statute still contains no definition of consent.
A note before going further: everything below about these two cases consists of allegations. No one in the Cornell matter has been charged, and the defendant in the Massachusetts case has not been tried. The presumption of innocence applies to all of them.
The Cornell Fraternity Case: “Voluntary” Intoxication and the New York Gap
The Cornell case is about intoxication the complainant chose, at least at first. A former student alleges that in 2024 she was sexually assaulted by members of Cornell’s Chi Phi chapter while she was too drunk and drugged to consent. Her civil complaint, filed in September 2026, says she had about 10 drinks in 3 hours before she arrived, and that fraternity members then gave her more alcohol and pressured her into snorting ketamine. The complaint also describes a Snapchat message to a chapter group chat inviting other brothers upstairs.
The accused tell a different story. Four said the sex was consensual; the rest said they had no sexual contact with her at all. An attorney for one has publicly denied the allegations.
When she first went to campus police, the prosecutor reviewed her statement and concluded that she had given voluntary consent. His reasoning is the crux. Under New York law, he explained, “mental incapacitation” covers someone drugged without her consent, and nothing in her statement suggested that. He called the group-chat messages disgusting but said they had nothing to do with consent, which was the legal question.
Critics call that a gap: in New York, someone who voluntarily drank or used drugs to the point of incapacity often cannot, on that basis alone, be shown not to have consented. New York’s statute instead looks to force, an explicit refusal, physical helplessness such as unconsciousness, or mental incapacitation. That makes another detail significant. In her Title IX interview, she said she told the men she was tired and did not want to continue. Whether that counts as a refusal the law recognizes may matter more than how much she drank.
The case is now back open. The prosecutor has said a grand jury presentation could be about 6 weeks away. The state attorney general is reviewing Cornell’s handling. Cornell’s own process reached mixed results; two men expelled, two given long suspensions, one already graduated, and two found not responsible. The gap between those campus findings and the criminal decision is itself a lesson about how differently the two systems define consent.
The Clavicular Case: Sleep, Alcohol, and Silence
The Clav case raises a different set of consent problems: sleep, intoxication, and the absence of a spoken yes. Braden Peters, the 20-year-old “looksmaxxing” streamer knows online as Clavicular, was charged with rape, drugging a person for sex, and providing alcohol to a minor. The charges stem from a May 2025 visit the complainant made to Clav’s home, when the complainant was only 17 years old. Clav’s representative denies the charges, and the case is set for arraignment later this month.
According to the probable cause affidavit, the complainant told police she woke up to find Clav having sex with her without her consent. She also alleged that the night before, after the couple drank together, the complainant had not verbally consented to sex then, either.
Thus, the probable cause affidavit describes two encounters: one that night, when the complainant says she was too intoxicated to consent; and one the following morning. Some of the events were livestreamed, which may give both sides unusually direct evidence of her condition.
The complainant’s age draws headlines, but it is probably not the legal issue. Massachusetts sets the age of consent at 16, so the case turns on whether she was capable of consenting, not on whether she was old enough. The Massachusetts statute defines rape as sex “by force and against [the person’s] will,” and its courts have long treated sex with a person incapable of consenting as satisfying that element. The Commonwealth also must prove that the defendant either knew, or should have known, that the complainant’s condition left her unable to consent.
The two encounters may come out differently. A person who wakes up during sex was, at its start, unaware it was happening. That is a cleaner theory than impairment from alcohol she herself drank. The phrase “did not verbally consent” is the harder piece. Few jurisdictions require a spoken “yes,” so the absence of one proves little by itself. The question will likely be her actual condition and what Clav knew or should have known about it.
Indiana’s Rape Statute: Four Doors, No Definition
Indiana does not define consent. Instead, Indiana Code section 35-42-4-1(a) makes it a Level 3 felony to knowingly or intentionally have sex, or cause another to perform or submit to other sexual conduct, when: (1) the other person is compelled by force or imminent threat of force; (2) the other person is unaware that the conduct is occurring; (3) the other person is so mentally disabled or deficient that consent cannot be given; or (4) the defendant disregarded the other person’s attempts to physically, verbally, or by other visible conduct refuse.
The fourth door is new. Yet it still leaves a gap. The statute affirms that “no means no,” but it doesn’t require a “yes.” Thus, as the Court of Appeals observed in a decision issued in 2023, a woman who is physically forced fits the statute, while one who silently submits out of paralyzing fear may not. See D.H. v. A.C., 225 N.E.3d 232, 236 (Ind. Ct. App. 2023).
Intoxication in Indiana: How “Mentally Deficient” Grew
Unlike New York, Indiana has no voluntary-intoxication gap, but it closed that gap through case law, not statutory text. The plain meaning of “mentally disabled or deficient” was once subnormal intelligence or mental disease or defect. Over time, the Court of Appeals stretched it to cover a victim who unknowingly took Xanax. Hancock v. State, 758 N.E.2d 995 (Ind. Ct. App. 2001), aff’d in relevant part, 768 N.E.2d 880 (Ind. 2002). It also covered a victim who was simply very drunk. Gale v. State, 882 N.E.2d 808 (Ind. Ct. App. 2008).
Why Consent Stays Thorny
Indiana asks juries to decide whether someone could consent without telling them what consent is. That cuts in every direction.
Drunk is not the same as incapacitated. Sexual encounters among college students sometimes involve alcohol, often on both sides. The law has to separate impaired-but-capable from unable-to-consent, and the only guide jurors get is their own common sense. A blackout, a gap in memory, is also not the same as incapacity at the time; a person can be walking, talking, and texting, and remember none of it later. Expert testimony on that distinction could provide important guidance, but it is frequently missing in these cases.
The gaps run both ways. For complainants, a statute built on force, unawareness, incapacity, and visible refusal can miss the person who freezes, the scenario the Court of Appeals flagged in D.H. For defendants, a definition of incapacity that lives only in case law, with no required jury instruction on capacity, invites verdicts driven by hindsight about how much someone drank.
What would help. The General Assembly should define “consent” and “capacity.” A clear definition would let complainants know what the law protects and the accused know what the State must prove.