Making the punishment fit the crime

The Cornell 7 story that has been roiling the media in the US reached my screen in Cuenca with most of the verdict apparently a foregone conclusion. The media story included seven fraternity brothers, a young woman, booze, illegal drugs, a gang rape, and a posh university that supposedly thought that writing an essay would be an adequate punishment.

It is a horrible picture, but most popular media relay a remarkably compressed account of what was very complicated late night and early morning.

Just to catch up, the woman, identified as Jane Doe, has recently instructed a lawyer to bring a civil lawsuit over events at Cornell’s Chi Phi fraternity house in October 2024. She alleges that she was sexually assaulted while incapacitated with alcohol and drugs. Her original complaint to the local police produced no criminal charges, but a renewed investigation is now being overseen by New York’s attorney general.

But what are the seven men actually accused of doing?

Hanna Stotland’s article in Slate supplies a distinction that ought to have appeared much nearer the beginning of the coverage. According to her account of the lawsuit, four defendants are accused of having sex with the woman, one of kissing her, and two of snorting powdered ketamine off her body.

That last allegation is degrading enough, but from a legal point of view, it does not make those two men interchangeable with the four accused of rape. Nor does a list of seven defendants tell us who supplied the drugs, who understood her condition, who encouraged others, or who else might bear responsibility for helping an assault happen.

Those are the questions an investigation needs to answer. “The Cornell Seven” answers none of them. And then there was Snapchat. According to the Slate account, one of the men posted an invitation to a group that there was “free pussy” to be had in the fraternity house. The wording is, of course, offensive, but the message also raises a concrete question: was this the invitation that brought other men into the room? Who saw it, who responded, and what did they find when they arrived? That sequence could tell us far more about individual responsibility than lumping everyone together as “the Cornell Seven.”

Stotland is an educational consultant who has advised hundreds of students involved in sexual misconduct proceedings.  She also previously advised one of these defendants, a connection she discloses. Her article is worth reading for the detail, without taking her interpretation as the final word.

She reports that the woman said she had consumed nine shots of vodka in a bar before going to the fraternity, even though she was legally too young to drink in the State of New York. Her account also describes drug use and young men so intoxicated that one struggled to stay awake when he was supposed to be participating in a threesome and another was vomiting. At least one of the men also appears to have been too young to legally drink alcohol in New York in 2024.

Drinking does not transfer responsibility for an assault to the person assaulted, but it matters if you are trying to reconstruct an evening in which the central question is whether someone could really give informed consent to group sex with strangers or very new acquaintances, and whether others knew she could not, or should have known.

According to Stotland, the woman’s account includes occasions when she refused particular acts and those refusals were respected. That does not settle whether she could consent at other points. Personally I have no direct experience in this area, but apparently orgy etiquette in a session that lasts several hours requires informed consent for each act that takes place. This gets especially complicated when one woman is having sex with three or more men at the same time and each of the men is assigned a particular level of consent that may be highly localized.

A refusal at one moment, apparent agreement at another, and incapacitation later cannot simply be stirred together into a single state of mind lasting for several hours that could be summarized as “she was up for it”..

There is also the claim that the men were punished by writing essays. Stotland reports that two were expelled, others received sanctions including suspensions, and the fraternity chapter was banned from operating and its college dorm building shuttered. Readers can judge those sanctions inadequate, but they should first be told what they were.

Then there is the ketamine, which appears in the reporting almost as though everyone already knows what it is and that it is about as harmful as a multivitamin.

Ketamine is a powerful anesthetic used in human and veterinary medicine. It can relieve pain and make a person feel detached from their body and surroundings. It can also produce confusion, immobility and loss of memory. It seems like these would be consequential effects when the question is whether somebody understood what was happening or could participate willingly in group behavior that most people would consider very shocking indeed.

Combined with alcohol, ketamine can cause profound sedation, impaired breathing, coma and death. So before considering anything sexual, this was already an evening when it would have been a good idea to have an ambulance on standby.

Ketamine is a Schedule III controlled substance in New York. Doctors can administer it legally, but it is not something students can legally buy in the university bookstore and pass around to friends for recreation. Simple unlawful possession can carry up to 364 days in jail; more serious possession and distribution offenses carry greater penalties.

Giving it away can itself be a felony too, because New York’s definition of a drug sale includes freebies and samples. Fifth-degree criminal sale is a class D felony, with an ordinary prison range of one to two-and-a-half years for an offender without a qualifying prior felony, although alternative sentences are possible.

Administering drugs without consent to facilitate a felony sexual offense is a separate crime when the required intent and an attempted or completed offense are proved. It carries a potential prison sentence of up to seven years.

So even if a sexual allegation cannot be established, the drugs alone deserve their own  investigation. Who brought them to the frat house? Who gave what to whom? Voluntarily taking ketamine and being secretly or forcibly drugged are very different events and neither amounts to consenting to sex.

All this now leads us up to a question that gets rather less attention than the demand for punishment: how do you make the punishment fit the crime?

Rape is a loathsome crime. But that word alone does not describe everything an offender did or everything a victim suffered.

New York already distinguishes degrees of rape. Third-degree rape ordinarily carries a sentence of 1-4 years, plus up to ten years of supervision or probation for a first offender. I would like to see a more explicit tariff, with a baseline for the underlying offense of sex without consent and then sharply rising penalties for additional cruelty, danger and harm. I am leaving the baseline open. A substantial fine and relatively short spell behind bars might be considered at the least aggravated end, but the increases for aggravating factors should be steep.

Force, threats, use of weapons, strangulation, injuries, kidnapping and confinement belong in that calculation. So do deliberate drugging, multiple attackers, planning, repeated assaults and previous offending. A victim’s age, disability, dependence on the offender, and abuse of authority or trust should weigh heavily. Recording the assault, circulating it, or threatening the victim afterward adds further wrongdoing.

Stranger rape may bring the added terror of abduction or an unknown attacker. Assault by somebody trusted brings its own betrayal. Knowing the victim should earn no discount.

Pregnancy, an ensuing abortion, infection and HIV exposure also need to be considered. Exposure is different from transmission, but waiting for test results and undergoing preventive treatment can be an ordeal in itself.

Contraception affects these additional risks. Using a condom does not excuse rape, but deliberately exposing someone to pregnancy or infection adds dangers that should count. Removing or sabotaging protection is another deliberate act. Other forms of contraception like the pill or implants may prevent pregnancy without doing anything about infection.

Then we should ask what happened to the victim afterward.

Some victims suffer profound psychological trauma without physical injury, pregnancy or infection. Others have a different aftermath. Compensation should reflect the individual’s actual suffering, its duration, its effect on daily life and the care required. Pregnancy, abortion or fear of HIV can add substantially to that burden, but no newspaper headline can measure it.

Counseling, psychiatric treatment, medical care, lost earnings and interrupted education all cost money, usually a lot of money. Those costs should fall on the offender wherever possible even if it means mortgaging future earnings. A fine sent to the treasury does little for someone trying to pay a therapist.

New York already allows restitution for qualifying losses, and civil lawsuits can seek damages. I would make the victim’s recovery much more central, with compensation for established harm and provision for future treatment. A public fund should meet urgent needs while future payment is pursued. The victim’s ability to receive necessary care should not depend on whether the offender currently has money in the bank. Future wages or inheritances may be garnished.

Money should not buy a shorter prison sentence, but doing time should not wipe out the financial obligation either.

Such a tariff could quickly produce many years in prison plus very substantial compensation. What it should also produce is an explanation: this person did these things, caused these harms, and received this punishment.

That explanation is what I find missing from so much of the Cornell coverage. We are given a number, a label and an invitation to be furious.

The victim, in this case a woman, deserves a thorough investigation of her allegations. The individual part played by each of the accused men deserves examination. And readers deserve enough detail to understand the difference.

There was a further financial consequence in this case. When the woman decided to withdraw from Cornell, she was reportedly denied a refund of her tuition fees. Undergraduate tuition fees at Cornell are $37,000 per semester. That raises a practical question about compensation: if an assault by fellow student causes someone to abandon their studies, should the resulting loss of tuition payments also count among the costs recoverable from the offender or the college?