Sexual Assault and Consent: What New York and South Carolina Law Actually Say

A civil complaint filed on September 16, 2026 in New York County Supreme Court has forced the country to look hard at what "consent" means under the law. The plaintiff, identified only as Jane Doe, alleges she was drugged and sexually assaulted for hours at a Cornell University fraternity house on October 19, 2024. She is suing seven men, Cornell University, fraternity and sorority organizations, and a local bar. No criminal charges have been filed as of this writing; the local district attorney reopened the investigation and New York's governor has appointed the state attorney general as special prosecutor.

Every allegation in that complaint is unproven. The accused men deny wrongdoing. I do not represent anyone in that case.

But the legal questions the case raises are real, and they matter far beyond one campus. Who is legally capable of consenting? What does consent actually require? Does it matter if the victim was drinking? Can consent be taken back once given? New York and South Carolina answer these questions differently — and the differences decide cases.

Who Is Legally Capable of Giving Consent

Not everyone can consent as a matter of law. Both states draw hard lines around age and mental capacity.

In New York, a person is deemed incapable of consent when she is under 17 years old. In South Carolina, the line is 16. A 16-year-old can legally consent in South Carolina but not in New York. This is strict liability territory: the other person's belief about the victim's age, and even the minor's enthusiastic agreement, do not matter. If the age line is crossed, there is no consent to argue about.

Both states also treat certain adults as incapable of consent. New York law covers people who are "mentally disabled" — suffering from a mental disease or defect that leaves them unable to appraise the nature of their conduct. South Carolina uses the term "mentally defective" for substantially the same idea: a mental disease or defect rendering the person temporarily or permanently incapable of appraising the nature of her conduct.

The practical point: consent requires a mind capable of understanding what is being agreed to. Where that capacity is absent — by youth or by mental condition — the law does not ask what the person said. It treats the answer as no.

What Consent Actually Requires

Consent is not the absence of a no. It is the presence of a yes — knowing, voluntary, and mutual.

New York's proposed reforms put it plainly: consent is "a knowing, voluntary, and mutual decision among all participants," given by words or actions that create "clear ongoing permission regarding willingness to engage in the sexual activity." South Carolina courts apply the same common-sense standard: the question is whether the victim freely and actively agreed, at the time, to the particular act.

Two words in that definition do heavy work. "Ongoing" means consent is not a one-time grant that covers the rest of the night. "Particular" means consent is act-specific. Agreement to one thing is not agreement to everything.

What You Can Consent To — And What You Cannot

Consent has boundaries, and crossing them is assault even when some sexual activity was welcome.

Agreeing to kiss someone is not agreeing to intercourse. Agreeing to intercourse with one person is not agreeing to intercourse with his friends. Agreeing to one act is not agreeing to a different act. Each of these is a separate question, and each requires its own yes.

This is one of the issues sitting at the center of the Cornell complaint. According to reporting on the plaintiff's statements to investigators, she indicated she was willing to engage in an initial encounter but did not consent to sexual contact later in the night. Whether her account is credited will be for a court to decide. But the legal principle is settled in both states: a yes to one thing is never a yes to another thing.

When Consent Is Withdrawn, It Is Gone

A person who consents can change her mind. When she does — clearly, in words or actions a reasonable person would understand — everything after that point is without consent.

New York lawmakers are currently pushing to write this into the statute explicitly. A pending bill would define lack of consent to include "verbal withdrawal of previously granted consent," closing any argument that an earlier yes covers later conduct. South Carolina law already treats continued sexual activity after a communicated withdrawal as non-consensual; the victim's account of saying stop, pushing away, or otherwise communicating unwillingness is evidence the jury weighs directly.

The rule is simple to state and absolute in effect: consent lasts only as long as it is given. The moment it is withdrawn, the legal permission ends.

Intoxication and Consent: Where New York and South Carolina Split

This is the sharpest difference between the two states, and it is the hinge of the Cornell case.

New York defines a person as "mentally incapacitated" only when she is rendered unable to appraise or control her conduct by a narcotic or intoxicating substance "administered to him without his consent." Read that carefully: the substance must have been given to her without her consent. If she drank voluntarily — no matter how drunk she became — she does not meet this definition. Prosecutors must then prove lack of consent some other way, which is why alcohol-involved cases are so hard to prosecute in New York. State senators have called this a loophole, and bills to erase the voluntary-involuntary distinction have passed the New York Senate but stalled in the Assembly.

South Carolina has no such loophole. Its definition of "mentally incapacitated" covers a person rendered temporarily incapable of appraising or controlling her conduct by "the influence of a substance or from some other cause." No qualifier about how the substance got there. Voluntary intoxication that leaves a person unable to understand or control what is happening destroys the capacity to consent, period.

The practical consequence: the same facts can produce different legal outcomes depending on which state's law applies. A victim who drank herself into incapacity has a clearer path under South Carolina law than under New York's current statute.

Refusal, Force, and Fear

Consent obtained by force is not consent. Both states recognize that submission driven by fear is not agreement.

New York treats "forcible compulsion" — physical force or threats placing the victim in fear of injury — as negating consent outright. South Carolina's criminal sexual conduct statutes are built the same way: sexual battery accomplished through aggravated force or coercion is first-degree criminal sexual conduct, the most serious grade.

And neither state requires the victim to fight back. South Carolina law is explicit that failure to physically resist does not equal consent, and a victim's testimony alone can support a conviction if the jury finds it credible. Freezing, submitting out of fear, or going along because resistance felt dangerous does not create consent after the fact.

You Do Not Have to Be Unconscious to Have Been Assaulted

A damaging myth says that unless the victim was unconscious or beaten, it was not really assault. The law says otherwise.

New York's "physically helpless" standard covers unconsciousness, but lack of consent reaches much further — force, threats, incapacity, and, for lower-grade offenses, any circumstance where the victim did not expressly or impliedly agree. South Carolina's "physically helpless" definition includes being asleep or otherwise unable to communicate unwillingness, and its consent analysis turns on voluntariness, not on bruises.

Most sexual assaults do not look like the movies. The absence of injuries proves nothing about consent.

Your Civil Rights After a Sexual Assault

Criminal prosecution punishes the offender. It does not compensate the victim. A separate civil lawsuit can.

Survivors in South Carolina can bring civil claims for assault, battery, and related torts against the perpetrator — and, in the right case, against institutions that enabled the assault. The Cornell complaint itself illustrates the institutional theory: it names not only the accused men but the university, the Greek organizations, and the bar, alleging each failed in duties that could have prevented what happened. Employers, schools, property owners, and organizations that ignore known dangers can face liability for the assaults that result.

Civil cases use a lower burden of proof than criminal cases. A district attorney's decision not to file charges — as happened initially in the Cornell matter — does not end a survivor's options. The civil justice system exists precisely for the cases the criminal system cannot or will not take.

Do Not Wait. Call Now.

I want to represent women who were sexually assaulted because I am an ally and a feminist. I have helped minors and adults get the justice they deserve when they were sexually assaulted. Let me do the same for you.

If you were assaulted — last week or years ago, on a campus or anywhere else, whether you reported it or not — you have rights, and time limits apply to enforcing them. Do not wait. Call now.

*This post is general information about the law, not legal advice for any specific situation. Every allegation discussed from the Cornell matter is unproven unless and until decided by a court.*