“Law & Order: Special Victims Unit” is renowned for its ripped-from-the-headlines episodes. Who can forget the Trayvon Martin-Paula Deen crossover featuring Cybill Shepherd as a racist celebrity chef or the Gamergate-riffing “Intimidation Game,” where Ice-T shoots Logan Paul’s misogynistic geek on a Manhattan rooftop?
The Season 28 premiere of “SVU,” on Oct. 8 on NBC, wasn’t a play on the news by design. According to showrunner Michele Fazekas, the episode was written and shot in July. But it will feel incredibly timely given its similarities to the Cornell 7 gang rape case — which “SVU” star Mariska Hargitay has publicly condemned, calling for justice to be served.
Titled “Volition,” the episode concerns Emily (Lizzy DeClement), a young woman who’s discovered in a subway car dizzy and disheveled. She believes she was gang-raped by a group of three men — two of whom she knew, including a man named Josh — while she was passed out from consuming too much alcohol. At the hospital, she claims she “doesn’t remember” and initially blames herself, prompting Benson (Hargitay) to assure Emily, “Was it the best idea to drink that much? It wasn’t. Does that mean that anyone is allowed to touch you or do anything to you without your consent?” “I guess not,” Emily replies, adding, “Look: The nurse said to just say that I passed out. I could say that if it helps my case.” But Benson advises her to stick to the truth.
Back at the station, the male detectives of “SVU” seem to disagree over whether someone with Emily’s .17 blood alcohol content can give consent. “You can’t give consent when you’re that drunk,” offers Det. Griffin (Corey Cott). “Legally, drunk people can give consent… Think about any girl you had sex with in college — were they drunk? Did you get consent?” fires back Det. Bruno (Kevin Kane). Benson cuts through the noise, declaring, “The law says that a victim has to be physically helpless or given an intoxicating substance without consent,” leading Griffin to reply, “Then the law is garbage.” Benson concurs: “I couldn’t agree with you more. And legislature even tried to change it this summer, but the session ran out before there was a vote, so we’re stuck with this garbage.” (As Fazekas told Variety, this law is real, and she thinks “it’s part of why law enforcement declines to prosecute” cases like the alleged Cornell gang rape when the victim was drunk — “and I hope that’s something that is talked about more,” she added.)
Det. Griffin and Capt. Curry (Aimé Donna Kelly) question the three men. One of the suspects, Scott, works for a tech startup and claims the night was “weird” but consensual, and involved Josh, Daniel (his cousin), Emily and himself at Josh’s mom’s place. “Eventually we were in the bedroom, and I can safely say I’ve never done anything like that… Have sex with someone and then watch other people have sex with that person,” he says. When Det. Griffin presses him on whether she offered consent, he says, “She didn’t say ‘no’ and she was acting very into it.” Sgt. Tutuola (Ice-T) questions Daniel, a guy with a girlfriend sticking to the same story, and Sgt. Rollins (Kelli Giddish) and Det. Bruno take on Josh, a lab technician friendzoned by Emily, who hints at culpability by refusing to engage with the police and may be “the weak link.” Meanwhile, Josh’s mom won’t cooperate with Benson, though she thinks she can crack her.
And indeed, she does. The mother shows Benson incriminating footage captured by the home cameras of Scott and Daniel goading Josh into not “missing an opportunity” with Emily since she’s so “wasted” that he can “do whatever you want to her, she’s not going to remember in the morning.” The three men then cheer, and go back into the apartment.
The case goes to court, where ADA Carisi (Peter Scavino) is joined by ADA Aidan Hawkins (Jelani Alladin), a recent graduate of Harvard Law, in taking up Emily’s cause. There’s also Gwen Sharpe (J. Smith-Cameron), a veteran jury consultant who helps them bounce a couple of questionable jurors. “I’d be worried about any woman who you put on this jury,” she tells Benson. “They project themselves onto the victim: ‘I would never put myself in that position, this could never happen to me,’ therefore the victim is to blame.” She adds, rather ominously, “I don’t think this will go the way you want it to… You have faith in the system [and] I hope you’re right. I just wouldn’t have gone to trial with this.”
At trial, defense attorney Andrea Vargas (Lindsay Mendez) grills Emily on the stand: “You can’t honestly sit here right now and say whether or not you consented?” “Did you push them away and make them stop… or were you encouraging them?” “You never said ‘no,’ did you Emily? And then when you woke up, you changed your mind!” The callousness of her questioning brings Emily to tears.
Vargas subsequently offers Carisi a deal: The men will cop to misdemeanor “forcible touching” — it won’t get them any extra time in jail, but will land them on the sex offender registry. Carisi urges Benson to accept the deal otherwise “they’re gonna walk,” and Hawkins sides with Benson in fighting it out, sparking conflict between the ADA and the commanding officer. A hung jury makes the case go to a retrial.
Olivia Benson (Mariska Hargitay) and Gwen Sharpe (J. Smith-Cameron) strategize in “Law & Order: SVU.”
Virginia Sherwood/NBC
Following the ruling, Benson drowns her sorrows over cocktails with Sharpe, and, in a revealing, impeccably acted scene, airs out her grievances about her job. “We don’t stop anything. We don’t prevent a crime from happening. We just pick up the pieces afterwards,” she says. “Nothing has changed. We’re 30 years in, and a jury gets to decide that if a woman drinks too much, then she deserves to be raped. That is the problem.” Sharpe’s advice to Benson is to “fight differently,” so she does, arresting Josh’s mother on trumped-up charges of evidence tampering and conspiracy to commit rape (with Hawkins’ approval, who signs off on the warrant) to flip Josh. The sketchy gambit works, and Josh agrees to testify against his pals in exchange for a lesser charge and the release of his mom, but inflames tensions between Benson and Carisi, infuriated that she’d gone behind his back.
Josh testifies during the retrial that as she lay in bed with Emily that night, she kept requesting her phone to order an Uber home, but the men had hidden it from her. Then, Scott and Daniel entered the room as Emily was passed out and all three men took turns raping her as she went in and out of consciousness. “She had no idea what was going on for most of it,” he confessed. “I’ve been thinking about her so much and fantasizing, and I convinced myself that she wanted it. That if she was awake, she would have wanted it.”
Scott and Daniel are found guilty of rape in the first degree — as Benson exits the courtroom, however, she locks eyes with Carisi and a look of guilt washes over her face. She got the result she wanted, but at what cost?
According to Hargitay, “Volition” held special importance for her due to the current laws surrounding consent, stating that if survivors choose to consume drinks or drugs they “cannot legally claim that they were unable to consent to sex — unless they were physically unconscious or unable to speak.”
She continued: “This is a voluntary intoxication loophole. It exists in 19 states. Legislators had the opportunity to address it and failed. Now is the time to let them know: These outdated laws must change.”