Nearly a decade after the #MeToo movement exploded on social media, a two-year-old Cornell University rape case has reignited outrage about alleged sexual assaults on campus.

This is not a simple ‘he said, she said’ case. There’s no dispute that a group of seven young men had sex with a drunken, drugged young woman, in one long night at a campus frat house. Our understanding of the facts may change as investigations progress, and we don’t know how or whether each of the men accused distinguished himself from his brethren. But so far this case centres less on conflicting narratives than on legal notions of consent and the definition of rape under New York law.

The facts as we now know them are complicated. According to in-depth reports by the New York Times, on the night of her alleged rape, Cornell sophomore Jane Doe started drinking at a sorority house and local bar before visiting a fraternity house to meet up with a friend. There, she later told campus police, she consented to sex with two of the men now accused of rape, noting that she was ‘pretty okay’ with it. She was also pretty drunk: as her civil lawsuit against her alleged rapists states, she was given large amounts of alcohol and pressured into snorting ketamine. In a night that lasted seven hours, seven men had sex with her.

At first, she didn’t consider herself a rape victim. One of the men involved texted her shortly after the alleged attack, apologising ‘for how things went down’, noting that he and his friend were also under the influence and unable to ‘shut it down and kick people out before it got way out of hand’. She responded amiably: ‘at the end of the day non of the sexual stuff was illegal and honestly I really liked being w u and matt’ (sic). Some three weeks later, she reported being raped to campus police.

Why the change of heart? The New York Times suggests that in the weeks after the attack she was traumatised and grappling with a sense of shame and humiliation. She ‘wanted it to be consensual’, according to one of her roommates. She was also concerned about her reputation, as rumours spread and she was labelled a ‘slut’; and she was angered by being disinvited to a Halloween party at the fraternity where her alleged attack occurred.

Was she raped? Whether or not you consider her responsible for drinking, using drugs and initially consenting to sex with one or two men, it’s fair to say that she was exploited, abused and objectified. It’s hard not to be repulsed by the spectacle of seven men descending on one woman. But not all repulsive behaviour is or should be criminalised.

Under New York law people who become inebriated voluntarily cannot claim they were unable to consent to sex. Jane Doe says she drank and used ketamine under pressure, but you might ask if she was free to leave. Giving in to social pressure is not exactly the equivalent of being coerced. You might also ask if the men who used her should have known that the sex was not consensual, given the alcohol and drugs in which they were all apparently indulging. Should they have recognised that they were raping her when she did not identify the sex as rape until weeks after it occurred?

Local district attorney Matthew Van Houten declined to prosecute this case two years ago, and we would probably not be talking about it today if Jane Doe hadn’t just filed a civil suit against her alleged attackers. Her lawsuit set off a firestorm and led to the appointment of a special prosecutor by New York governor Kathy Hochul, up for re-election next month.

The accused men will likely be indicted but perhaps not ultimately convicted. New York law, limiting claims of incapacitation in rape cases and the reasonable doubts raised by Jane Doe’s own equivocations, could fairly result in acquittals. But if convictions are unlikely, law reform expanding the definition of rape seems inevitable.

A bill already pending in the state legislature would support third-degree rape charges when alleged victims are under the influence and out of control, whether or not they drank or used drugs voluntarily. This is a ‘binary issue’, according to Bronx assemblyman Jeffrey Dinowitz, who introduced the bill. ‘Either you’re on the side of the survivors or you’re on the side of the rapists.’

That is precisely wrong. You can also be on the side of due process and narrowly drafted penal laws. You can sympathise with Jane Doe and condemn the behaviour of the men she accused, while questioning the reflexive urge to prosecute them. She may well have civil remedies against her alleged attackers, but we will all be at risk if we ask the penal law to right every wrong.