That’s good momrath, finally some college is raising their hand and saying "wait a minute’ we never signed on for this. For heavens sake they had a STUDENT on the tribunal making a decision about another student’s expulsion which led to him not getting his diploma, losing his job and his work visa. OMG.
4536 [quote] Unreasonable Fang, sittin' over here in the corner.
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alh is joining you. So is half her sorority pledge class, maybe more.
I don’t want to be explicit and certainly don’t want to disrespect Consolation.
momrath - Thanks for putting the post together, particularly the links to the complaint that was filed last month. I’d be curious what any attorneys have to say. After my reading, stripping away most of it as fluff and just focusing on the easily checkable pled facts, I’d say there is a lot of simple incompetence on the part of Duke here. Having a student chair the hearing? Forget about how it looks, relevant or not - she’d have no idea how to tighten up the transcript and wouldn’t even understand the issue.
A lot of this isn’t that hard. Make sure the investigator has a license, have them meet in person with the witnesses, … And you should expect a $2.5 Billion dollar annual revenue university to figure out how to do it competently.
If I were on the Duke board, I’d be fuming while I waited for the trial to be over to engage in oversight and clean house. I’d also get a few more insurers on deck.
I agree that Duke truly fumbled the ball here. This looks like plain incompetence. The guy may be guilty, but if those descriptions are correct, the entire process was bungled.
“I bike tour with male friends. We normally camp, but sometimes we’ve been riding all day in the pouring rain and we are delighted to find some motel. Often enough, there’s only one room available. (And although money is not tight for me, it certainly is tight for many other cycle tourists, so people usually get one room even if there is more than one person.) Having cycled all day in the pouring rain, I’d be freezing. If it had been a few days of camping in the rain, I wouldn’t have any dry clothes to put on. I’d be sharing that bed with my friend, and in no way would I be consenting to sex.”
Sorry, I think that’s more than a little odd, to be in bed, without clothes, with a man you weren’t in an intimate relationship with. No sense of boundaries, whatsoever. And of course it’s not consent and nothing justifies rape - but it’s also not a very bright thing to do.
“If you say that women can’t do these things in groups of mostly men, you’re saying that men are allowed to be cheap, but because men can’t be trusted not to rape women, women aren’t allowed to bike tour, to compete, to travel in the same way men are. Men can’t be trusted not to rape their friends, companions, fellow competitors.”
No. It’s not that women “aren’t allowed” to do these things - it’s that they are exercising poor judgment.
Look at it this way. Suppose I went into a coffee shop and decided to work. I have a laptop and smartphone with me. I take out my wallet to pay for something and instead of putting it back, I just leave it open, and I take all my credit cards out and lay them on the table along with a bunch of $20 bills. Then for whatever reason, I decide to go take a walk for an hour and leave all my stuff sitting there.
Now, I’m not “consenting” to have my stuff stolen - but anyone with half a brain would say that I was not very bright and didn’t exercise anything remotely resembling good judgment.
My guess would be that Duke will not allow this case to go to trial, but will settle with McLeod privately.
I think it’s important to realize that the Duke/McLeod case is not a one-off example of bungling by college sexual assault committees. In fact, nothing in the McLeod case is any more or less outrageous than the incompetence shown by the colleges in the other 20+ cases that are now pending. For example:
http://www.avoiceformalestudents.com/wp-content/uploads/2014/06/Drew-Sterrett-Complaint-against-University-of-Michigan-Ann-Arbor.pdf
http://www.saveservices.org/2014/10/another-woman-scorned-another-lawsuit-claiming-false-accusation/
http://www.mindingthecampus.com/2013/08/the_dubious_rape_trial_at_vass/
http://www.avoiceformalestudents.com/wp-content/uploads/2014/06/John-Doe-Full-Lawsuit-against-Occidental-Part-1.pdf
Even if the colleges’ intentions are purely benign, college faculty are simply not capable of investigating and adjudicating felony sexual assault. The insistence of the OCR that they do so or lose their funding, puts the colleges in an untenable situation.
It’s going to take more statements from administrators like UVa’s Richard Shannon and more settlements of un-winnable cases to get some relief from this OCR inflicted insanity.
“So if he tells you to take off your clothes and you do, it’s consent?”
Did something prevent me from saying no? Was I being physically threatened with violence or being physically overpowered at the time? If he was pinning me down, or threatening to harm me if I didn’t, well, then obviously it’s not consent, any more than the mugger in the alley doesn’t get “consent” when he tells me to hand over my wallet.
But if he simply tells me to - then no, I’m not obligated to, so why am I complying?
Monrath, I appreciate your links.
That Colgate case looks like bigotry.
Not sure groups that purposefully advocate for men are necessarily so much more fair minded or impartial (or comprehensive,) when some here feel women’s advocates can’t be. Think about it.
PG, not just threats or physical action, but also her impairment. Bottom line, doesn’t constitute “consent.” We can label it all sort of other things.
Of course I think being naked in bed is tempting something. But I can still turn back to the issue of consent.
But, you weren’t there and presumably no-one else was there either. So, how is it not still a he said, she said with circumstances that do not do her any favors? That’s assuming he says she said sure, whatever.
Put me in the camp that disagrees with the undress, bed, and consent comment. When I was in college many decades ago I would very often stop at girl friends (not girlfriends) dorms and we would sleep in various states of undress and nothing ever happened and, I promise you, it was never their intent that something happen. I still see these women (and their husbands) 30-40 years later and we kid about how I spent so many nights “sleeping” with them. I use this example all the time when people make statements like 'guys and girls can never really be friends. There is always some underlying sexual attraction". BS!
I would also add that DW and I hadn’t been dating too long when I asked if I could spend the night. She said yes, as long as we just kissed and cuddled.
I am sure that I (and the various individual women I have associated with over the years) are not all that unusual.
Consent for what? Consent to have sex - no. Did they consent to take their clothes off - yes.
And by my standards, after they took their clothes off I’d probably feel free to kiss or caress them without asking even if we had just started dating recently. If we hadn’t previously kissed that night, would I be violating the affirmative consent law? Call me stupid, but I honestly have no idea. Need to read the owner’s manual or something. At the risk of being snarky, do we need to put the concept of “bases” in the law?
(I’m assuming we’re not talking about someone drugged/drunk to the point of incapacitation/knife to their throat. And by tell them to take their clothes off, I assume you mean ask them to take their clothes off.)
As everyone knows, I am generally in the “yes means yes” camp and not the “no means no” camp. Having said that, however…my biggest problems with “yes means yes” are twofold. First: most of the time it will be a moot point because it will still be a “he said/she said” scenario. There might be a few scenarios where there were witnesses etc where it matters, but probably not many. But, since in those matters it won’t hurt to have YMY vs NMN I side with enacting YMY.
My second problem however is harder for me to overcome. I shouldn’t have to ask my DW of several decades if she wants to have sex. I usually do, but there are times when she makes it very clear that I don’t need to ask. There should not be a law that criminalizes my actions that night (or hers since she also doesn’t ask).
So, I guess my feelings could be summed up by saying that I agree with YMY for new relationships and, especially, cases where there are drugs or alcohol involved, but think that NMN is good enough when a person’s actions indicate they are consenting. I also realize that that leaves room for ambiguity about what equals “affirmative actions”, and I am not sure how to get around that.
I see. Suppose you did that, and your stuff was stolen, and then the thief was apprehended with your credit card and your laptop. Suppose he argued that he had not committed any crime in taking your money, credit card and laptop. You consented to his stealing your laptop, by foolishly leaving it where he could steal it. Would you accept that argument? That’s the argument you’re asking me to accept-- that the mere exercise of bad judgment in itself constitutes consent to sex.
The issue is not whether the woman in Alaska exercised bad judgment. The issue is whether, bad judgment or no bad judgment, she consented to sex.
^^^ I say in no way did she consent, but I say that because she was asleep. Had she been awake and not impaired and gone along willingly with his advances without ever saying no then I say she did consent.
I see the benefit of Yes Means Yes as being when the sex is or is not happening, not afterwards when someone accuses someone else of rape. The benefit is when a person routinely, or cockily, or reluctantly, tries to obtain consent and, surprise! They don’t get it, and the nonconsensual sex that was going to happen doesn’t happen.
The devil is in the “gone along willingly” details there. If those were the alleged facts, that he said she was awake and went along willingly, and she said she was awake and didn’t consent, then the jury would have had to figure out what would have constituted “going along willingly” and whether she did it. I wouldn’t want to be on that jury. But there’s the benefit of YMY: presuming that he didn’t WANT to have sex with her without her consent, if he asked, he could discover that he didn’t have her consent and the problem would not exist.
But she was asleep. Sleep is not “going along willingly.”
This should go down as the “Well, duh!” statement that defines why this entire concept of schools acting as investigators, lawyers, judges, and juries is so off the logical beaten path.
I understand why it seems strange that a school, such as Duke with all its money, could not get this correct, but this is actually the exact problem that is expected, i.e., not getting it correct. Same goes for the Vasser example, and all the other schools as well.
The norm is when an entity is under fire is for two things to happen: 1) the organization falls back on what its knows best, and, more importantly, 2) each individual piece in the organization enters a serious CYA psychological mode, which really tightens up the reversion to habit. Note that none of this is new activity, and since the reaction is to revert to what one knows best, the result is a lack of new thinking within the organization vis a vis the new scenario.
From the outside, it is easy to look at what Duke did not do or what Vasser did as something that no logical entity would do. However, on the inside, the goal is not to look 6 months not the future and at the politics and optics concerning an area one knows nothing about - learning on the fly is the stuff of movies, not of real companies that have entrenched cultures and SOPS.
Therefore, the goal becomes to make sure one dots every “i” and crosses every “t” using the playbook the organization knows. Why? Because that is the only playbook it has and its costs more money and time to develop a playbook they do not have, especially for something that is not their core business.
And that is exactly what Duke (and Vasser et al) did - it followed the only playbook it knows and tried to adopt its administrative and honor committee structures and processes to this new charge of sexual assault adjudication. In the previous non-sexual assault cases, it was just fine to have a student lead the tribunal, and it was OK for an incestuous relationship to be allowed on the honor committee etc. And most likely, no one ever complained (or complained with lawyer in hand) to the schools about the makeup of past resolution committees, so the schools had no reason to change what they are used to doing. But, clearly in sexual assault cases, what the school are used to doing does not work so well.
I am not making excuses for the schools. I am just pointing out that money is not the issue at all; it is that entities, like people, do what they know best in times of stress. In fact, more money could make the problem worse because it often gives a sense of immunity in that we can buy our way out of this and thus the incentive to change processes is actually less than if your financial back is against the wall - I see that all the time in the business world. It is a lot easier to close or restructure a division if the division is losing 1% per year than if it is breaking even or making a 3% return - even if it should be giving investors a 10% return.
Anyway, what schools are learning the hard way is that once you abandon your core business, you are bound to lose money. Nothing new there either, as every business knows this. And regardless of what the DOJ thinks, schools are not immune to the laws of business.