Cornell, Part 2: Who Gets to Prosecute, and the Mob on Both Sides

Cornell, Part 2: Who Gets to Prosecute, and the Mob on Both Sides

anthony john, esq.

Sarah Schmeiser and I come back to the Cornell case after a week that moved fast: Gov. Kathy Hochul removed the Tompkins County DA and named Attorney General Letitia James special prosecutor, Megyn Kelly said she'd publish Jane Doe's name if it came out, and Jane Doe's lawyer says she's been threatened to drop her lawsuit.

In this episode:

• How Wisconsin lets a private citizen ask a judge for a criminal complaint when the DA won't act, and the case that made that law famous, State ex rel. Kalal v. Circuit Court, 2004 WI 58. Sarah was one of the complainants.

• Why "believe all women" is the wrong standard for a courtroom, and why it hurts the victims it's meant to protect.

• New York's "voluntary intoxication" gap vs. Wisconsin's knowledge-based statute, and the ceiling-tile hypothetical from my 2018 brief to the Wisconsin Court of Appeals.

• Vigilantism against the accused and the accuser, and checking our own outrage.

Clarification: New York treats a person who is unconscious, or "physically unable to communicate unwillingness," as incapable of consent however she got that way. The gap is for someone conscious but impaired by substances she took herself. (N.Y. Penal Law §§ 130.00, 130.05.)

This episode discusses sexual assault.

Sources

• State ex rel. Kalal v. Circuit Court, 2004 WI 58

• N.Y. Penal Law § 130.00

• N.Y. Penal Law § 130.05

• Megyn Kelly: "If her identity is revealed, I am going to name her" (Media Matters)

• Cornell accuser faces threats demanding she drop her lawsuit (NBC News)

• Timeline of the case (ABC News)

Watch on YouTube · Part one: Cornell, Consent, and the Culture War