LF, I was being sarcastic while asking those questions. 
Not sure if anyone else cares, but here’s the rest of the reasoning the judge used in the preliminary injunction hearing in McLeod vs. Duke. The issue was why didn’t the judge force Duke to award the degree on an interim basis (which they could always do if Duke loses the case of course) despite the harm caused by loss of a job and deportation:
The loss of even a lucrative job can be cured by money. Duke can just pay him a few million if they need to as compensation for the loss of a Wall Street career. So the job isn’t an issue. And being sent back to Australia isn’t a hardship since it’s his home and it’s not like he’s being persecuted there. As for the degree, the Duke handbook forbids awarding degrees to those under disciplinary action, so Duke is covered there, and anyway there’s a pretty high hurdle for a court to force them to award a degree.
It’s always hard to tell when you’re just reading each side’s version of the case, but I kinda think McLeod has a pretty good argument based on the facts he and Duke plead. After the lacrosse team fiasco you’d think Duke would be pretty aware of the issues and would have buttoned down their processes. If they lose this one then they really need to do a housecleaning starting with the president, just because he obviously can’t run things competently, between this and the recent frat house giving a roofie to a student (allegedly). Either that or hire Harvard grads instead of Duke grads to run their legal team
Agree, punitive damages should cover the cost of the lost job and what happened to him in the US and (as in the Peter Yu case) will be seen by foreign countries as well…strange American university politics.
Remember, the Supreme Court, it seems, doesn’t find some issues as related to “fundamental” or guaranteed rights as we may think. “Material rights” or even the issue of risks to “property” aren’t as simple as, “But he could have earned this money.” And the issue of settling for damages (or agreeing to) is sometimes just to bring a dispute to a conclusion.
I don’t see how you can blame Duke’s president for the frat guy (allegedly) giving a roofie to a student. I can easily imagine making a case that Duke is tolerating far too much drinking, but they’re not tolerating date rape drugs other than alcohol.
I found one troubling argument when I was Googling around the net about the McLeod case at Duke. Some advocates are arguing that because Duke has never before expelled a rapist, they shouldn’t be able to expel McLeod for rape. Students who are accused of rape should get due process, of course, and if McLeod is not found guilty he should get no punishment, but just because a school has negligently refused to expel past rapists doesn’t mean they shouldn’t expel the next one.
CF - It’s really just the pattern of bungling these issues (assuming the McLeod case is lost due to poor procedures). Seems like it’s quite a bit worse than just a school trying to manage a set of bad situations they were dealt. But apart from the bungling and the $30 million in settlements - they won’t stand up for due process when the guys were innocent, they seemed to believe the cultural problems were so deep that it was likely the lacrosse frat guys were guilty but then they don’t reform the system ??? And now you have this latest roofie incident.
If the alleged roofie thing were just an isolated incident it would be different. Now, it’s just another straw on the camel’s back and the camel’s getting pretty tired.
I guess I view the entire set of issues around handling sexual assault with the utmost seriousness. And the more senior the job the less tolerance I have for incompetence - in that respect I might be 180 degrees different than the rest of corporate America At some point, I don’t care about excuses, there is (i) a pattern of policy failures (ii) personnel is policy (iii) the president is the head of personnel. Time to clean the stables. There might also be the side benefit of getting colleges to take this more seriously. (I also have other concerns I’m factoring in that aren’t relevant to this thread)
Maybe he’s a good fundraiser and that washes away all sins… Oh, well. Not my school.
There is just way to much apples and oranges going on here to make much sense of it without a page long post that no-one would read anyway. So nevermind.
I presume the idea is that the lacrosse incident was managed poorly after the initial allegations (which it certainly was) and McLeod didn’t get a fair process after the allegations (which is certainly arguable). Are you saying that the roofie incident has been managed poorly after it happened?
But I think if Duke loses the McLeod case because of poor processes, that’s enough straws without the roofie case.
It would be astonishing if the President of Duke were not a good fundraiser. You don’t get that job without being able to bring in the bucks. Fundraising is the President’s main job.
Can someone please explain how Yes means Yes works in a practical everyday situation? I am not involving alcohol in this discussion, just sober people wanting to have safe sex without the potential for accusations the next day.
And I’m not being sarcastic. The parts that confuse me are:
Silence is not consent. (I get that) But non-verbal forms of consent are allowed (which are silent). So is silently taking off my shirt and bra consent? Is silently getting into the bed consent? Is silently “getting into a certain position” (as stated happened in the highered essay, he asked, she did so) consent? Is silently handing over a condom to my partner consent?
Or are none of these consent because I was silent?
Does anyone see how this could be confusing to some college kids, maybe doing this for the first time, especially one who ends up accused of rape or assault because I, under one part of the statute have “consented” (I think taking off my shirt and getting into bed and grabbing the condom, etc etc are actions that could fairly be deemed consent), but on the other hand, I said not one word the whole encounter?
In the higher ed essay (please for a moment forget about the alcohol involved), the woman seems to have been silent, and yet physically participating and responding to requests from the man. She never states in her report that she is acting out of fear or that she is incapacitated. If I asked my partner to do something (take off my bra) and he did it, albeit silently, I would take that as consent. Am I wrong?
I don’t consider myself an idiot, but this paralyzes me. Silence is not consent, but physical silent cues are? Help.
Looks to me in the McLeod case that we have two people with two different realities and they both may be right and both may be wrong.
CF - Yes. Most importantly, McLeod getting a bungled process instead of a fair process would mean we would have less chance of ever knowing the truth of what happened. And if he’s guilty then he might not be punished. And honestly you’re probably being more rational than I am about the roofie thing. I have no reason to think the roofie incident is being managed poorly; quite the opposite in fact. But given Duke’s own implicit admissions, I’d want to hold someone accountable unless I was convinced they’d put in some pretty strong reforms of their fraternity policies in the aftermath of the lacrosse incident.
bearpanther - All good and serious questions about affirmative consent. I’m not so sure about it myself. I worry that it criminalizes behavior that 99% of people agree shouldn’t be criminal (in addition to giving prosecutors a tool to pursue behavior 99% of people agree should be criminal).
On a lighter note - don’t these young whippersnappers talk to each other anymore during sex? What are they doing - texting? Back in my day, we spoke to each other during sex, especially during a first time encounter, and had to walk uphill both ways through 3 feet of snow to get condoms. And we liked it (well, I’m not actually joking about that last part).
Are you asking how to consent, or how to make sure the other person consents? Other people can give you tips on how to make it clear that you are completely into the sex that is about to happen-- I’m partial to the Molly Bloom quote I put upthread.
As to how to make sure that the other person consents, the safest thing, unless you’ve been having a long sexual relationship, is to ask them. What you might interpret as consent, another might think was taking off her cold, wet clothes because she had been out in the rain for a long time and was freezing. What you might interpret as consent, another might interpret as if I get in this position, he’ll finish sooner and I can go home. Normally the rule is that words or enthusiastic actions count as consent, but the line between enthusiastic and not can be blurry.
In California law, asking for condom use or handing over a condom is specifically NOT consent. Before that law was enacted, a woman who begged the stranger raping her to use a condom so she wouldn’t get AIDS was treated as if she had consented to sex.
So, ask. Then you’re sure. If you don’t ask, you might completely misunderstand their motivations, and you might rape them. Be safe. Ask.
By the way, according to [this article](Colleges across country adopting affirmative consent sexual assault policies), every Ivy League school except Harvard already has an affirmative consent policy, and so do all the SUNY campuses. Duke and UNC have affirmative consent policies too.
In the interests of cancelling out the karmic debt I incurred during my Duke tirade, I’d like to applaud Yale and Texas Tech for their strong actions - from CF’s article (edited slightly):
al2simon, why is this particular roofie incident any worse than all the other ones that have been happening all along in colleges all across the US? Some frat guys use roofies and GHB to drug women and then rape them; it’s a thing and has been for a long time. This is barely news. What do you think Duke was supposed to have done beforehand?
Can someone please explain the affirmative consent campus standard. It does not seem to be the law off-campus so I am confused.
CF - It isn’t any worse. It’s just the one at the top of my mind. If I read an account of any of the incidents you are referring to I’m sure I’d have a stroke too. As you may recall, I brought up the roofie thing a few days ago because I just started noticing that they were being mentioned a lot more.
I like to think I’m a reasonable person. In the case of roofies there isn’t one scintilla of room in my mind for an alternative explanation. I’ll throw the switch myself and sleep like a baby. Here’s how I previously said I feel about it -
I have a daughter. I’m not rational about it. Ignore me.
Affirmative consent: You can’t assume that if they didn’t say no, you can have sex with them. Before you have sex with them, they have to say yes.
I find it interesting that having sex with someone unconscious is not seen to be wrong by the people who do it. We keep seeing them making photos and videos of their crime and sending them around. They brag about it. But as far as I can see, intentionally drugging a woman to unconsciousness** is still a taboo, and guys are not admitting it publicly.
** with a drug other than alcohol