The Dickson Firm, L.L.C. represents nursing home residents and their families in cases against the owners and the operators of nursing homes throughout the State of Ohio.
This article was written by Ohio nursing home attorney, Blake Dickson.
October 8, 2026
There have been numerous stories in the news lately about seven men at Cornell University (The Cornell 7) who apparently had sex with a woman at a fraternity house. I say "apparently" because the case has not been fully adjudicated. There is a civil case pending that has not been adjudicated. There was a criminal investigation that did not result in charges being filed. Apparently that criminal investigation has been reopened. My understanding of the story is based on the news reports that I've read.
Based on the news coverage it appears that a woman who was severely intoxicated went to a fraternity house at Cornell University two years ago at the invitation of one or more members of the fraternity. It appears that she may have agreed to have sex with one or more of them. However she was already extremely intoxicated. She apparently ingested ketamine and became incapacitated and apparently a number of the members of the fraternity had sex with her. According to the news coverage, seven members of the fraternity had sex with her and a text chain went out to over 50 members of the fraternity, communicating that there was an incapacitated woman in one of the rooms and inviting people to come and have sex with her.
This story is atrocious. We at The Dickson Firm are and have been committed to the representation of survivors of sexual assault for decades. We are horrified by this story. We are horrified that anyone would take advantage of an incapacitated young woman. We are horrified that apparently over 50 members of this fraternity were aware of this situation and none of them did anything to stop it. None of them interceded. None of them called the police. None of them did anything to protect this woman. And while the prosecutor may be limited by the laws in the State of New York, the University certainly is not. To the extent that there is proof that over 50 members of this fraternity were aware that an incapacitated young woman was being assaulted in their fraternity house and not one of those members acted, it is my personal opinion that every single one of them should be expelled. If there is any way to prosecute them under the law, they should be prosecuted.
One part of the story that has troubled me is coverage of the law in New York, which apparently indicates that if a person becomes voluntarily incapacitated and they are later assaulted, their assailant cannot be held criminally responsible.
In New York lack of consent is an element of every sex offense. An individual who lacks the capacity to consent cannot give consent. One way that a person can be incapable of consent is when they are mentally incapacitated or physically helpless.
Under the Penal Law in New York a person can be mentally incapacitated if they are rendered temporarily incapable of appraising or controlling their conduct by a narcotic or intoxicating substance (only if that narcotic or intoxicating substance was administered to them without their consent or by another act committed on them without their consent). In other words if someone slips something into a person's drink, or surreptitiously gives them drugs or alcohol without their knowledge, they can be “mentally incapacitated” under the Penal Law in the State of New York. But if they consume the alcohol voluntarily or they take the drugs voluntarily, they are not mentally incapacitated under the definition of that term in the State of New York.
Under the Penal Law in New York, a person who drank or took drugs voluntarily is not “mentally incapacitated” under the definition of “mentally incapacitated” in the Penal Law, no matter how impaired they are. The incapacity theory is unavailable to prosecute an assailant who had sex with a drunk person or a person who is on drugs, who is so drunk or so incapacitated by their drug use that they cannot provide consent.
However, the assailant can be prosecuted in New York for forcible compulsion. Forcible compulsion means the use of force or the threat of force.
The assailant can also be prosecuted if the survivor is unconscious or, for any other reason, is physically unable to communicate their unwillingness to have sex. This definition under the Penal Law has no voluntariness qualifier.
In other words if a person is drunk or on drugs and they voluntarily got drunk or voluntarily took the drugs, then the prosecutor cannot prosecute the assailant because the survivor was mentally incapacitated. However if the survivor was unconscious or otherwise unable to communicate their unwillingness to have sex, the prosecution can prosecute the assailant regardless of how the person became unconscious. Even if the person voluntarily drank to the point where they were unconscious, or voluntarily took drugs to the point where they were unconscious, or to the point where they could not physically communicate their unwillingness to have sex, the assailant can still be prosecuted.
Also if the survivor clearly expressed that they were not consenting to sex, then the assailant can be prosecuted.
Senate Bill S54-A and Assembly Bill A101-A are currently pending with the State of New York Legislature. It would add a new section 130.05(2)(e), covering a victim who's clearly under the influence of drugs or alcohol to a degree that left them unable to control their conduct and unable to clearly express their lack of consent (where the assailant knew or reasonably should have known of their condition). This bill passed the State of New York Senate 58-0 on April 28, 2026, and was referred to the Assembly Codes Committee, where it remains. A similar bill was passed back in 2025 but it never made it out of the Assembly. New York State is one of 19 states whose laws treat an intoxicated victim as mentally incapacitated only if the intoxication was involuntary.
What is the law here in Ohio?
The Ohio Supreme Court recently decided the case of the State of Ohio v. McLean, Slip Opinion Number 2026-Ohio-3934. In Ohio an assailant can be convicted of rape if the survivor's ability to resist or consent to sexual interaction has been substantially impaired because of a mental or physical condition. An assailant can be convicted of rape if the assailant substantially impairs the judgment or control of the survivor by administering a drug, intoxicant, or a controlled substance surreptitiously, or by force, threat of force, or deception. This would involve situations where the assailant slips something into the drink of the survivor or forces the survivor to consume alcohol or take drugs. An assailant can be convicted of sexual battery if the survivor's ability to appraise the nature of or control their own conduct is substantially impaired.
Here in Ohio, an assailant can be convicted of first-degree rape under Ohio Revised Code Section 2907.02(A)(1)(c), which is a felony of the first degree, even if the survivor's impairment resulted from the fact that they consumed drugs or alcohol voluntarily.
In a case like this the state must prove:
Unlike New York, Ohio Revised Code Section 2907.02(A)(1)(c) contains no requirement that the drug or alcohol was given to the survivor without their consent.
In this recent case, State v. McClain, the Supreme Court held that the state does not have to prove what caused the impairment. The state does have to prove that the impairment was substantial such that the survivor's ability to resist or consent to sexual interaction was substantially impaired. The state does have to prove that the assailant knew or should have known that the survivor was incapable of consent.
Here at The Dickson Firm, we are committed to the representation of survivors of sexual assault.
Tragically we represent minors who were taken advantage of by adults including underage students who had inappropriate relationships with adult teachers and adult camp counselors. We also represent elderly nursing home residents who were assaulted by other residents in the nursing home. We also represent elderly nursing home residents who were assaulted by staff at the nursing home.
Nursing homes have an absolute duty to do a thorough background check of anyone that they hire to work at the nursing home. There is a statute in the State of Ohio that has a long list of crimes and if someone has been convicted of any of those crimes, they are not legally permitted to work in a nursing home.
With respect to residents assaulting other residents, the nursing home has an absolute duty to adequately supervise all of its residents. If it has a resident who engages in any kind of inappropriate interaction with the other residents, it has a duty to act. It has a duty to address that resident's behavior and potentially to discharge that resident from the nursing home.
We realize that these cases can be very difficult to discuss. But if you or someone you care about has been the victim of sexual assault and you would like to contemplate pursuing a civil case, we would be happy to listen to you. We would be happy to help you in any way that we can.
Please call us at 1-800-OHIO-LAW.
