Re: Even The Liberal New Republic is willing to spread FUD

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I know very little about him but am getting the impression that [Jonathan Chait] is always wrong about everything, y/n?

I don't know much about him either, but DeLong has praised him (which is hardly conclusive evidence).


Posted by: NickS | Link to this comment | 10-15-14 10:00 AM
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Chait is always right about the true nature of Republican economic policies. He should probably stick to that.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 10:14 AM
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Chait is generally right about everything except his hatred of teachers' unions and hatred of Palestinians. And he only writes about those things occasionally.


Posted by: Cryptic ned | Link to this comment | 10-15-14 10:17 AM
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This Katha Pollitt article indicates that Canada and New Jersey already has something of a "affirmative consent" law and it doesn't make much difference.

http://www.thenation.com/article/181911/why-yes-means-yes-so-misunderstood#


Posted by: lemmy caution | Link to this comment | 10-15-14 10:18 AM
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Tell us more about why it made your blood boil -- to me it just seemed hopelessly incoherent and rambling.

A link to the bill.


Posted by: lurid keyaki | Link to this comment | 10-15-14 10:22 AM
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That slide from "15-year-olds are too young to consent" to "therefore requiring affirmative consent from 20-year-olds is infantilizing to women" is really something.


Posted by: Blume | Link to this comment | 10-15-14 10:23 AM
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The thing that bothered me about both the Chait piece and the original Judith Shulevitz piece is the conflation of appropriate due process standards for criminal courts and college disciplinary proceedings.

Shulevitz decries the fact that "at Harvard, the Title IX enforcement office acts as cop, prosecutor, judge, and jury -- and also hears the appeals." The thing is, much the same system obtains for disciplinary proceedings for plagiarism or defacing library books. There may be a presumption of innocence at law, but there is no presumption of fitness to remain at Harvard, and the Ad Board process has always reflected that.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 10:24 AM
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Chait is generally right about everything except his hatred of teachers' unions and hatred of Palestinians.

The latter is unfair to Chait. He's hasn't come around as far as Peter Beinart on willingness to criticize Israel, but AFAICT he is basically sympathetic to Palestinian national aspirations. On the teachers unions thing, though, yeah, he has a burr under his saddle about that.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 10:27 AM
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Chait is also wrong in his optimistic perspective on the history of black people in America as we have discussed.


Posted by: peep | Link to this comment | 10-15-14 10:47 AM
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I will leave the question of whether Chait is right to mock Ohio as an assignment for the reader.


Posted by: snarkout | Link to this comment | 10-15-14 11:00 AM
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Is Chait the one who thinks that liberal elites need to acknowledge that college football is teh awesome?


Posted by: JRoth | Link to this comment | 10-15-14 11:04 AM
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6: Agreed.

Anyway, this is the crux of the argument:

A double standard is actually ratified into law whereby the phallus represents true, unmediated desire, while female desire must be interpolated through words. While the law must protect women from the inequality of force men have at their disposal, what is the utility of demanding that women require an extra level of mediation to signal desire, under conditions where no imbalance exists?

No, no: the demand is that women require an extra level of mediation to signal consent.

I'm reminded of the movements established in the 80s into 90s -- the era of HIV -- to move public opinion on sexual activity toward requiring to know whether a prospective partner has been tested for HIV .. if so when, how long ago? If that's hazy, condoms are required. I certainly changed my behavior back then; it strikes me that this is after a similar thing. It's not enough to have a hazy non-verbal 'uh-huh' as a sign of consent, though it may be a sign of desire: really, how challenging is it to urge people to have a conversation, however brief?

Should that be legislated? I'm not sure there, actually.


Posted by: | Link to this comment | 10-15-14 11:09 AM
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10: He'll feel guilty for that when we're all dying of Ebola.


Posted by: peep | Link to this comment | 10-15-14 11:11 AM
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I don't know, not sure, watched Haneke's Piano Teacher last night and still all confused


Posted by: bob mcmanus | Link to this comment | 10-15-14 11:28 AM
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LeMieux has some thoughts worth reading on the topic.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 11:49 AM
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5: incoherent yes, but its frequent reiteration that verbal consent is required, when that isn't mentioned in the bill, its mockery of the idea that consent could be continuously given or indicated, its apparent belief that people will think that man consents to sex just because he has an erection (for all I know, the author thinks that herself), its claim that the law codifies the man as initiator of sex (and its support for that claim in a totally different document) … it's a mess, and (I suspect) a pernicious mess. It's sloppy and lazy and bizarre and stupid.


Posted by: nosflow | Link to this comment | 10-15-14 11:53 AM
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15: Quoting:

But the idea that even in principle "don't think like a sexual predator" is an excessive burden on students is entirely implausible to me, and I won't assume that the new standards will fail in either direction ex ante.

This surely gets it right.


Posted by: parsimon | Link to this comment | 10-15-14 12:11 PM
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OT: Good news: The Supreme Court blocked the 5th Circuit's ruling that had allowed for the closing of numerous abortion clinics in Texas. I really did not see that coming.


Posted by: | Link to this comment | 10-15-14 12:38 PM
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Oh sorry - forgot that my pseud has been forgotten. 18 me.


Posted by: parsimon | Link to this comment | 10-15-14 12:43 PM
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8: Chait's wife works on education policy and is a fellow traveler of the Michelle Rhee types.


Posted by: lambchop | Link to this comment | 10-15-14 12:57 PM
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The thing that bothered me about both the Chait piece and the original Judith Shulevitz piece is the conflation of appropriate due process standards for criminal courts and college disciplinary proceedings.

The conflation goes both ways, insofar as liberals, on campus and off, seem rather pessimistic about the idea of influencing the criminal justice system to treat sexual assault with anything like the systematic respect that a college of a few hundred or thousand has the flexibility and responsiveness to provide, if pushed and shoved enough.


Posted by: Flippanter | Link to this comment | 10-15-14 1:04 PM
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1: Neoliberal approved!


Posted by: Eggplant | Link to this comment | 10-15-14 1:06 PM
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I think expulsion from a university is serious enough that even if a reasonable doubt standard isn't necessary, it should be clear and convincing at least. I'm fine with a lower standard for what amounts to a civil order of protection.


Posted by: CharleyCarp | Link to this comment | 10-15-14 1:09 PM
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Is that for everything? No expulsions for plagiarism unless proven by clear and convincing evidence with due process protections as well?


Posted by: LizardBreath | Link to this comment | 10-15-14 1:25 PM
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I'd be fine with that, yes.


Posted by: CharleyCarp | Link to this comment | 10-15-14 1:28 PM
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23/24: I think there is space for reasonable people to disagree about the appropriate scope of due process protections in disciplinary proceedings generally - I always found the absence of a neutral fact finder in the Harvard process vaguely troubling, though it never affected me personally. But it seemed wrong of Chait and Shulevitz to act like this is some novel injustice imposed by affirmative consent rules.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 1:33 PM
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Chait thinks there is a qualitative difference at play because you can be prosecuted for rape, whereas the civil authorities aren't going to imprison you for plagiarism. Treating rape as a special case requiring extra due process protections strikes me as wrongheaded. After all, disciplinary hearings deal with plenty of rule violations (drug dealing, assault) that are simultaneously criminal offenses. Also, I frankly suspect a lot of Harvard undergrads would consider it a greater humiliation to be expelled for cheating than for nonconsensual sex.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 1:38 PM
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If that's what makes sense to you.

In NYS, at least, non-criminal administrative determinations that can shut down someone's livelihood are made on a standard that's lower than preponderance of the evidence (well, the ALJ making the determination is presumably applying a preponderance standard at least in her own mind, but a reviewing court has to let her determination stand if it's supported by at least 'substantial evidence' -- enough to provide some real support for the determination, even if it's not enough that the reviewing court considers it a preponderance.)

A general principle that no really important determinations should be made on less than a clear and convincing standard would mean a total revolution in the regulatory state, which seems like a poor idea to me. On the other hand, the idea that expelling a kid from college is necessarily weightier than shutting down a multi-million dollar business also seems wrong to me.


Posted by: LizardBreath | Link to this comment | 10-15-14 1:40 PM
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28 to 25.


Posted by: LizardBreath | Link to this comment | 10-15-14 1:41 PM
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Also, I frankly suspect a lot of Harvard undergrads would consider it a greater humiliation to be expelled for cheating than for nonconsensual sex.

Uhhhhhh....


Posted by: Flippanter | Link to this comment | 10-15-14 1:46 PM
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This would be an opportune juncture for colleges to start promoting LB's "enthusiastic consent" concept as a sort of "fence around the Torah" to ensure compliance with the affirmative consent standard.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 1:54 PM
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30: probably unfair of me to make that claim about contemporary students I have no firsthand knowledge of.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 1:57 PM
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I'm trying to make a yad joke now.


Posted by: Moby Hick | Link to this comment | 10-15-14 1:57 PM
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33 to 31, but I'm not coming up with anything.


Posted by: Moby Hick | Link to this comment | 10-15-14 1:58 PM
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On the logic of 28, we could have a preponderance standard for non-capital criminal offenses.


Posted by: CharleyCarp | Link to this comment | 10-15-14 2:03 PM
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7 There may be a presumption of innocence at law, but there is no presumption of fitness to remain at Harvard, and the Ad Board tenure process has always reflected that.


Posted by: essear | Link to this comment | 10-15-14 2:28 PM
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16: The sloppiness, laziness, bizarrerie, stupidity of that article are the features of just about every political argument I witnessed in my grad program. (The article's author was in the same program.) An argumentative style steeped in critical theory is just terrible in this context; the move is always to call out one's opponent (or indeed one's ally) for unstated assumptions, recast those assumptions as binary oppositions and hand-wavingly knock them aside without offering anything so banausic as alternative proposals. Not only is praxis not on the train, it can't even get the system map to load on its phone.


Posted by: Vaclav Havel | Link to this comment | 10-15-14 2:32 PM
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Not only is praxis not on the train, it can't even get the system map to load on its phone.

That's quite a sentence.


Posted by: peep | Link to this comment | 10-15-14 2:35 PM
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Banausic! What a wonderful word. Thank you, Pán Prezident.


Posted by: Minivet | Link to this comment | 10-15-14 2:52 PM
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35: No, that'd be different logic.

The logic of 28 is that getting expelled from college is more like losing your real estate broker's license, which can happen now under less than a preponderance standard, than it is like being criminally convicted and imprisoned.


Posted by: LizardBreath | Link to this comment | 10-15-14 2:57 PM
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If the ALJ in the broker's license situation is applying a preponderance standard (subject to substantial-evidence review), isn't that the same as saying the Ad Board or equivalent should apply a preponderance standard? The standard that matters for due process purposes is the standard applied by the person who's making the decision, not the standard applied by a reviewing court.

E.g., a state could (so far as federal law is concerned) dispense with appellate review entirely even in criminal cases, but it would still be constitutionally required to instruct juries to make determinations beyond a reasonable doubt.


Posted by: widget | Link to this comment | 10-15-14 3:12 PM
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Also I think what drives the due process concern is not the consequence of being expelled from college per se, but the stigma of being declared to have committed sexual assault, which feels intuitively like the sort of thing to which due process protection should attach. I'm not sure that intuition is correct, mind you -- I think it may be a specifically male intuition and I don't know that it should be given controlling weight here. But I think it's the stigma and not the opportunity to get a college degree that matters.


Posted by: widget | Link to this comment | 10-15-14 3:20 PM
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I shouldn't have said they're applying a preponderance standard. The standard at both levels is substantial evidence. It's just that from the point of view of the decisionmaker, they're not going to make a finding unless they think it's correct, which means that in some sense they think the evidence points that way. This is going to be psychologically hard to distinguish from a preponderance standard in the mind of the ALJ, even though the standards are legally distinct.

That is, a possible situation is that there might be evidence adduced at a hearing relating to a charge of a regulatory violation, and a substantial portion of that evidence might support the conclusion that the respondent had committed the offence. But the ALJ, after hearing the evidence, doesn't think he actually did. She could issue a determination that he did, and a reviewing court wouldn't disturb it, because there's enough evidence to meet the standard. But she's not going to, because she doesn't actually believe it would be correct.


Posted by: LizardBreath | Link to this comment | 10-15-14 3:21 PM
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42: I think you're right about the intuition, and while I can see why one might feel that way, applying it in practice means that you could apply heavier punishments with lower standards for lesser offences, because the offense itself wouldn't be as shameful. It would be fine to expel for plagiarism based on evidence that wouldn't suffice to expel for rape, and that can't be the right answer, can it? (My question in 24 was actually trying to figure out if Charley's position was driven by that intuition.)


Posted by: LizardBreath | Link to this comment | 10-15-14 3:24 PM
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43: So if the ALJ says on the record: "Based on the evidence, I think violation probably did not occur, but I believe as a policy matter that our real estate brokers should be above suspicion, and here agency counsel has presented substantial evidence to support a finding of a violation, which casts sufficient doubt on the defendants' fitness to be a real estate broker that I believe the defendant's license should be revoked," that gets upheld? I think a federal ALJ would get reversed for that, though take your point that it's not something that anyone would likely ever say.

44: The plagiarism hypothetical doesn't clarify the situation (to my mind) because plagiarism is a species of fraud, so a significant stigma attaches there as well. To find an expulsion for some reason that really doesn't attach a stigma you would need to take a reason like academic incompetence or failure to pay tuition. And I think that the result would be different there -- it would be totally appropriate to put the burden on the student to prove academic competence, where it wouldn't be appropriate to require the student to affirmatively prove innocence of either plagiarism or rape charges.


Posted by: widget | Link to this comment | 10-15-14 3:49 PM
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I just had to explain to a small child why her teacher wasn't thrilled with the "fucky head" song she freestyled at school the other day. I'm not sure if it was fair to define fucking as "generally a penis and a vulva" because I knew it would maximally gross her out, but it's also probably statistically true, right? We can get into more nuance later. Because I was trying to be comprehensive, we covered the N word too, which it turns out she's only heard in a positive context, so that was awkward.


Posted by: Thorn | Link to this comment | 10-15-14 4:01 PM
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45.1: It'd depend on the reg, I guess, but what I was thinking of was a reg that authorized revocation of the licences as a penalty for violating the reg. What you're describing doesn't sound like a finding that respondent violated the reg, regardless of the evidentiary standard, so I don't think it'd stand up.


Posted by: LizardBreath | Link to this comment | 10-15-14 4:08 PM
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45 et al. Plagiarism is surely less of a he-said, she-said situation, as the accusation carries with it (one would hope) documents that were plagiarized.

If sexual assault had similar concrete evidence in all cases, then the situation would not be as fraught.


Posted by: DaveLMA | Link to this comment | 10-15-14 4:09 PM
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47: Well, specifically I was trying to imagine an express ALJ finding that a violation had been established by substantial evidence but not by a preponderance of the evidence. I'm more used to thinking of substantial evidence as a judicial standard for review of agency findings than as a standard applied by the agency itself. Though I am probably the only person on the thread to find this aspect of the discussion even remotely interesting, and you're kind to humor me.


Posted by: widget | Link to this comment | 10-15-14 4:20 PM
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Goddmamne fucking royals freeking team of destiny may ass.


Posted by: Spike | Link to this comment | 10-15-14 4:36 PM
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the civil authorities aren't going to imprison you for plagiarism.
Halford's only been gone, what, two days? How quickly they forget.


Posted by: SP | Link to this comment | 10-15-14 4:41 PM
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an express ALJ finding that a violation had been established by substantial evidence but not by a preponderance of the evidence.

Yeah, I think such an express finding is self-contradictory. Once the finder of fact explicitly says that a preponderance of the evidence standard hasn't been met, I think they can't consistently make the finding. Nonetheless, the standard the agencies in NYS are required to use internally is still substantial evidence, not preponderance. It's a mystery, in the Catholic sense.


Posted by: LizardBreath | Link to this comment | 10-15-14 4:42 PM
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CCarp-- when I was in school, nobody got expelled (which required a vote of the faculty). They just urged people to withdraw and said they could petition to come back after some ridiculous length if time, like 2 years, to encourage them to move on.

They also got people to leave for mental health reasons and made it hard for people to come back.

And the rules probably need to be different for public institutions.


Posted by: Bostoniangirl | Link to this comment | 10-15-14 4:56 PM
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53.1 sounds like being a partner in a law firm. Except you can't come back. (This did not happen to me, I'll add for no reason in particular.)


Posted by: CharleyCarp | Link to this comment | 10-15-14 5:11 PM
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That is, at my firm expulsion required an 80% vote, but no one ever made us take a vote.


Posted by: CharleyCarp | Link to this comment | 10-15-14 5:12 PM
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I haven't followed the issue closely, but the letter from a bunch of Harvard Law faculty about the new Harvard-wide procedure makes some good points about due process, if they're based on an accurate understanding of the policy (which I don't know), and I have a lot of respect for some of the signatories.


Posted by: Bave | Link to this comment | 10-15-14 5:22 PM
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Also I think what drives the due process concern is not the consequence of being expelled from college per se, but the stigma of being declared to have committed sexual assault, which feels intuitively like the sort of thing to which due process protection should attach.

But there's another side of that, which is the harm to someone who's been assaulted when the assailant gets away with it. That can include perceptions of having made a false accusation, difficulty being in the same environment as the assailant, etc. I haven't been deeply involved in this stuff, but my impression is that the push from the administration and some in Congress is about re-conceptualizing the disciplinary process as deciding for the accuser or for the accused. A preponderance standard makes more sense if you look at it that way: you're balancing the risk of error between two individuals, either of whom will be hurt by a wrong decision. That's very different from approaching it as a proceeding between the institution and the accused in which you err on the side of protecting the rights of the accused.


Posted by: DaveLHI | Link to this comment | 10-15-14 5:27 PM
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56: Look carefully at some of the wording in the last couple of paragraphs:

The law that the Supreme Court and lower federal courts have developed under Title IX and Title VII attempts to balance all these important interests. The university's sexual harassment policy departs dramatically from these legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.

We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats.

What they're saying is that they think Harvard should reject the current guidance of the Office for Civil Rights of the US Dept of Education, which is telling universities that they must have policies containing exactly the elements that they object to, because they think OCR is wrong on the law and Harvard is rich enough to survive having its federal funding pulled while that gets sorted out.


Posted by: DaveLHI | Link to this comment | 10-15-14 5:33 PM
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Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats.

The track record of this particular line of argument at persuading the President and Fellows of Harvard University of anything is approximately 0 for 10,000.


Posted by: knecht ruprecht | Link to this comment | 10-15-14 5:39 PM
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Only 10,000?


Posted by: DaveLHI | Link to this comment | 10-15-14 5:52 PM
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Yale is the one with the ethics.


Posted by: Moby Hick | Link to this comment | 10-15-14 5:56 PM
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MIT is the one with the ethnics.


Posted by: apostropher | Link to this comment | 10-15-14 6:01 PM
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It is a little implausible to imagine any R1 school doing anything to jeapordize their federal funding, but Harvard especially has a lot to lose.


Posted by: Sifu Tweety | Link to this comment | 10-15-14 6:02 PM
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We just loosened our academic dishonesty burden of proof to a preponderance of evidence. It used to be cheaters who got caught were embarrassed, but now they all just appealand stick to their guns no matter how ridiculous.

I think if I were running a university I'd want a high standard of proof for a first allegation, but a lower standard for anyone with multiple credible allegations.


Posted by: Unfoggetarian: "Pause endlessly, the go in" (9) | Link to this comment | 10-15-14 6:16 PM
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That second paragraph was specifically for sexual assault. Though honestly it'd also make sense for academic dishonesty too.


Posted by: Unfoggetarian: "Pause endlessly, the go in" (9) | Link to this comment | 10-15-14 6:17 PM
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Though I am probably the only person on the thread to find this aspect of the discussion even remotely interesting

Me too, though belatedly. FWIW, I've always understood "substantial evidence" to be about the quality of the evidence, not about weight/burden of proof. At least under the federal APA, where the default statutory standard is something like "reliable and substantial evidence", with the burden of proof on the proponent of the sanction. I've never seen the "substantial evidence" requirement invoked in support of a burden lower than preponderance (usually when there's an argument about burden it's between preponderance and clear/convincing, depending on the sanction at issue). I.e., if you have 2 scintillas of evidence in favor of a sanction vs. 1 scintilla of evidence against the sanction, that would strictly speaking amount to a preponderance in favor, but would not be substantial enough to take away someone's real estate license or whatever. And that's what reviewing courts are supposed to be doing under the APA--not second-guessing the agency's weighing of the evidence so much as making sure the record is solid enough to support the sanction. NY of course could be entirely different.


Posted by: potchkeh | Link to this comment | 10-15-14 6:18 PM
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||

Since Lone Star came up recently

Anybody NMM'd Elizabeth Pena yet? 55

Just tons of movies in the 80s & 90s when I was watching paycable, from Milagro Beanfield to batteries not included to Things Behind the Sun to Down and Out in Beverly Hills to a flawed little gem with Ruben Blades called Crossover Dreams. She never stopped working ( Mirage in Incredibles?) but I stopped watching. I watched batteries just for her.

|>


Posted by: bob mcmanus | Link to this comment | 10-15-14 6:20 PM
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66: Hrm. I'm not sure I understand the distinction you're making. Someone trying to overturn an administrative determination can't do it by arguing that the preponderance of the evidence goes against the agency, because the agency doesn't need a preponderance. Instead, they have to argue that what evidence the agency did rely on is not even substantial. In NYS, we talk about that as an evidentiary standard, lower than preponderance.


Posted by: LizardBreath | Link to this comment | 10-15-14 6:46 PM
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||

Thing about Pena (yeah, diacritical) back then is that I thought along with a small group of other actors she wasn't motivated by money, fame, or even art but by politics, ethics, and dignity and I could count on movies she chose to work in being if not great at least classy and in tune with my politics. David Strathairn and Chris Cooper maybe belonged in there.

I mourn her

|>


Posted by: bob mcmanus | Link to this comment | 10-15-14 6:51 PM
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66 is an interesting formulation. Is it from caselaw or your personal interpretation?

I go back to Universal Camera when I have to think about or explain substantial evidence review -- the phrase "express[es] a mood" rather than stating any sort of determinate standard. When the court looks at the record, does it get the feeling that the agency was being reasonable in the findings it made and the action it took? That's all there is to it in the end, and advocacy on the standard is all about creating or dispelling that feeling.

But apparently it means something else in NY, which is of course NY's right.


Posted by: widget | Link to this comment | 10-15-14 7:10 PM
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68: I can't come up with a ready example, but conceptually, you can have a preponderance of evidence that is not substantial/reliable. Of course as a practical matter they're related, but under the federal APA they're distinct in that sense. Under the APA you get to a preponderance standard (if not higher) simply by virtue of the fact that the APA assigns the burden of proof to the proponent of the sanction--that would be pretty meaningless if your burden wasn't at least to get over the 50% likelihood threshold. The reliable and substantial requirement is on top of that, not a subset of that.


Posted by: potchkeh | Link to this comment | 10-15-14 7:12 PM
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71: Funny -- two jurisdictions divided by a common term of art.

The way it's applied in NYS, it's definitely less than a preponderance, rather than an additional requirement on top of preponderance. In ordinary language terms, what a court does when it reviews a determination under a substantial evidence standard is to give almost complete deference to the agency -- the court can look at the evidence, and think that the weight of the evidence goes against the agency (and they'll sometimes actually say that, or come close to it). But if the agency has some respectable evidence on its side, the determination stands; it's only overruled if everything the agency relied on is ridiculously flimsy.

This is probably a useful conversation to have had -- I don't do federal admin law generally, but if it ever came up, I would have been at real risk of thinking I knew what substantial evidence meant outside of NYS.


Posted by: LizardBreath | Link to this comment | 10-15-14 7:21 PM
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71 is how I understand the federal system. The idea that all the state has to have is some evidence for something, and not even a preponderance, is kind of disturbing. (For initial action, rather than deferential appellate review.)

So, I'm acting as an arbitrator tomorrow. Are the poor lawyers going to be subjected to everything I don't like? Well, wouldn't that put the universe in balance?


Posted by: CharleyCarp | Link to this comment | 10-15-14 7:24 PM
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Or deferential judicial review.


Posted by: CharleyCarp | Link to this comment | 10-15-14 7:27 PM
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I think 57 gets it right.


Posted by: JP Stormcrow | Link to this comment | 10-15-14 7:27 PM
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72: Right, under the APA a court reviews for substantial evidence, and that can certainly be met even if that court wouldn't find a preponderance if it was reviewing de novo. And as a practical matter that means that an agency can get away with making a determination on the basis of substantial evidence that does not amount to a preponderance.* But they're not really just different points on the same line, they're distinct inquiries. Preponderance is anything north of 50%, but substantial/reliable isn't just some number between 0 and 50%.

*Although I'm certain there's caselaw on the proper agency burden of proof, so there must be another way reviewing courts can get at that, but I can't recall how.


Posted by: potchkeh | Link to this comment | 10-15-14 7:29 PM
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69:

Bob, I loved the Sayles movies for the exact same reason, or hope. Loved Lone Star

I made a reference here to Matewan just the other week.


Posted by: idp | Link to this comment | 10-15-14 7:34 PM
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57. But there's another side of that, which is the harm to someone who's been assaulted when the assailant gets away with it.

Sure, but that's true of any crime or any injury to anyone; the law is not a perfect instrument of justice, and people are victims of crime are not assured that the person who did it will be punished.

We have the "beyond reasonable doubt" standard, not to mention all sorts of constitutional protections that potentially let a lot of criminals off, and we here (I would hope) support that level of protection for people accused of crimes. Sexual assault is a crime, too, so why should we discard due process when someone is accused of it in a university setting?


Posted by: DaveLMA | Link to this comment | 10-16-14 6:00 AM
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We are not discarding due process, we are determining that a different level of process is due when we are not imposing criminal sanctions.

O J Simpson was found to have killed his wife by a court using a preponderance of the evidence standard, and a civil judgment was imposed against him. Findings that a person has committed actions that constitute a crime using a lesser standard of proof than 'beyond a reasonable doubt' are perfectly ordinary.


Posted by: LizardBreath | Link to this comment | 10-16-14 6:07 AM
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79. We are not discarding due process, we are determining that a different level of process is due when we are not imposing criminal sanctions.

"Different" meaning "none" in this case?


Posted by: DaveLMA | Link to this comment | 10-16-14 6:19 AM
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I'm sorry, specifics? I'm not aware of anyplace that imposes sanctions for sexual assault with no process at all.


Posted by: LizardBreath | Link to this comment | 10-16-14 6:28 AM
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Does the law in the OP have any thing at all to do with due process or evidenciary (is that a word?) standards? It's just changing the definition of what needs to be proven, isn't it?


Posted by: Moby Hick | Link to this comment | 10-16-14 6:30 AM
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There's also some federal reg that requires that colleges use an evidentiary standard of no more than a preponderance of the evidence in disciplinary proceedings related to sexual assault. Here's an article.


Posted by: LizardBreath | Link to this comment | 10-16-14 6:33 AM
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Oh.


Posted by: Moby Hick | Link to this comment | 10-16-14 6:36 AM
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Sort of on topic bleg, for a friend. There's a poem I remember reading in undergrad that has lines that go something like:

oh, of course, you love me for my character
and I you for your virtues
but isn't it nice that our bodies love each other too?

That's a very rough approximation, remembered from literally 15 years ago. Does anyone know the name of this poem?


Posted by: Tia | Link to this comment | 10-16-14 8:17 AM
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Oh, never mind, I just got it with "our bodies love each other" in quotes.


Posted by: Tia | Link to this comment | 10-16-14 8:19 AM
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Decent article on affirmative consent, as explored by "The Mindy Project" that I saw through Benquo on FB.


Posted by: LizardBreath | Link to this comment | 10-16-14 9:02 AM
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I thought there was something unsatisfying about that article, actually, because it both argues that it's not hard to obtain consent, but then portrays "stealing fifth", as long as you stop when you hear no, merely as something that doesn't happen in "an ideal world." It just exclaims "everyone's crazy!" at the people who called that rape. It's weird to lead an article about the value of affirmative consent by saying that people were overreacting to a situation where someone failed to get it. And who doesn't get that anal is the kind of big step that you should either verbally ask about or at least progress towards scrupulously slowly, and who isn't trying to get away with something by "stealing it"?

(I am not saying that I actually believe that justice would be served by the long arm of the law reaching out to take Mindy Kalin's TV boyfriend, only that leading an article about affirmative consent by presenting that situation as hey, no bigs, something to have a fight over, but no more than that, is an odd choice. I think it would have made more sense to frame it as "here was an honest and realistic depiction of a violation of affirmative consent that happened in a relationship". Then you might be forced into an uncomfortable and genuinely complicated consideration of when justice is served by legal action, but that would be preferable to whitewashing a real violation.)


Posted by: Tia | Link to this comment | 10-16-14 12:02 PM
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Huh. Didn't actually watch the show, of course, so I'm reacting to it through Harding's article. But you are certainly right that what the show (as described) depicts isn't someone getting affirmative consent, it's someone immediately respecting expressed non-consent and coming to accept that he was wrong to not have gotten affirmative consent to begin with, and would get it in the future.

Is Harding off when she depicts attempting anal with no prior negotiation as worth having a fight over but obviously not worth calling the cops over ? Huh. Describing the situation in abstract terms, you sound absolutely right. On the other hand, thinking about the show (as described) concretely, my reaction is the same as Harding's -- that calling the actions described (while having otherwise consensual sex in the context of a relationship, attempting anal without negotiation but immediately backing off at a negative reaction) rape or terribly close to it, seems like an obviously bad description.

She doesn't get into what makes it an obviously bad description at all, and she probably should have. Trying to figure out what's driving my reaction... it's not that being in a relationship constitutes implied consent to anything and everything. But being in a relationship can, depending on the relationship and the specific people in the relationship, give the parties a lot more latitude in shortcutting negotiations about sex than people who don't know each other well have. It sounded as if the show was depicting a relationship where what the guy did was, while unwanted and worth hashing out, not perceived as importantly violating or frightening, and that seems to me like something that, while it wouldn't be true of all relationships, isn't unrealistic.


Posted by: LizardBreath | Link to this comment | 10-16-14 1:38 PM
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LB, just to be clear, you're saying a lot of things I just said: *I* don't think it's worth calling the cops over either. The depiction sounds emotionally true to how it might be handled in a real relationship.

I do think that's a sneaky, violating move, although the intensity of the reaction will vary from person to person, depending on a lot of contextual factors. It also would be realistic and natural to me to see a story about that kind of encounter where the woman breaks up with the man on the spot; I definitely know people with very bright-line boundaries about that kind of thing, and I can hardly say they're wrong to have them.

I just think it's a weird way to begin the article: issues around consent are so clear! Yet they make everyone crazy! Affirmative consent is great! Here are a bunch of people overreacting to someone failing to obtain it! Yes Means Yes is a natural legal standard! But it's not a big deal to make an obvious sneaky move as long as you stop when you hear no!

To be clear again, I am not actually arguing that Mindy Kalin's TV bf should be arrested. I just think this actually points to complexity in a way the author of that piece does not allow.


Posted by: Tia | Link to this comment | 10-16-14 1:58 PM
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It also would be realistic and natural to me to see a story about that kind of encounter where the woman breaks up with the man on the spot; I definitely know people with very bright-line boundaries about that kind of thing, and I can hardly say they're wrong to have them.

This is right, certainly.

I think maybe Harding's piece made two points, but muddled them up a bit. Or maybe I think she should have written it to make two distinct points, and she didn't.

The main point would be that affirmative consent isn't terribly confusing. Danny, the guy in the show, didn't get affirmative consent. And even though he backed off immediately at a negative reaction, it was still a jerk thing to do, and it is not even remotely puzzling or incomprehensible why Mindy was angry and they had to work it out. Normal people, behaving normally, in normal sexual relationships, get affirmative consent all the time on an ongoing basis, and when they proceed without affirmative consent it's an obvious problem. This isn't a weirdo innovative new standard, it's how people ordinarily behave and if you're a decent person you're not going to have any particular trouble with it.

And the secondary point, which was confusing in context, is that using an affirmative consent standard doesn't mean that we're required to regard literally every moment of sexual contact not affirmatively consented to in advance as rape; not all violations are equal, and the people involved can and will be reasonable in working out the weightiness of any such violation and will treat minor (as perceived by the people affected) violations as part of the process of communication of boundaries between partners. I think Harding meant (and I'd agree with her) that a reaction that treats literally any violation of an affirmative consent standard as necessarily constituting sexual assault is oversimplifying and makes the affirmative consent standard look unworkable.


Posted by: LizardBreath | Link to this comment | 10-16-14 2:31 PM
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But yeah, after reading your reaction I do agree that Harding's piece is kind of muddled.


Posted by: LizardBreath | Link to this comment | 10-16-14 2:35 PM
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While I'm throwing articles into a dead thread, Ezra Klein; nothing earthshatteringly interesting, but sensible.


Posted by: LizardBreath | Link to this comment | 10-17-14 8:10 AM
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nothing earthshatteringly interesting, but sensible.

I think you've hit on Vox's business model.


Posted by: Moby Hick | Link to this comment | 10-17-14 8:12 AM
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Unless Vox's business model affirmatively consents, though, absolutely nothing is going to happen.


Posted by: LizardBreath | Link to this comment | 10-17-14 8:15 AM
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94: Wow, there's a flame for the moths of capital. Wasn't there scuttlebutt re: Vox seeking $10-15M in the first round?


Posted by: Flippanter | Link to this comment | 10-17-14 8:17 AM
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I've been hesitant to express my thoughts on that article fully, in part because I just worry about the time an involved conversation might take, but I don't find your 91.2 satisfying either, LB. Admittedly I haven't read the text of the law in question and googling just now I couldn't find it. But if failures to obtain affirmative consent are going to punishable by expulsion, and that is one, I don't see how that's not potentially punishable by expulsion if the receptive partner is angry or upset enough to report it. If that seems unjust, well, then, I think it might be worth acknowledging conflicts between intuitions about what kind of interactions ought to be private matters and the potential consequences of the law. It was bizarre that the article came up with a perfect test case to really complicate things and tried to use that as an illustration of how everything is simple.

The part that I agree is simple is obtaining affirmative consent.


Posted by: Tia | Link to this comment | 10-17-14 8:43 PM
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I'm going to make an analogy, or ask if something is analagous, and then flee the thread back to the work I've been procrastinating. Also, who the heck is up at this hour?

I might lend my car to a housemate, or leave my keys on the kitchen counter. Unless I was really specific, I would not consider this permission for the housemate to borrow the car anytime, and I've known a household fall apart when one member took a car without permission and the owner called it in as stolen. Which, IIUC, the car legally was, no matter if it had been lent before. Almost everyone agrees that one maintains ownership of one's car.

Even so it's one bare word against another, whether it was borrowed with permission. This doesn't seem to bring down the property system, or cause honest housemates to flinch at the sight of keys, or anything.


Posted by: clew | Link to this comment | 10-18-14 4:40 AM
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It's not that early.


Posted by: Moby Hick | Link to this comment | 10-18-14 4:54 AM
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It's morning in America, except Hawaii, Alaska, and, for those in post-colonial denial, the Philippines.


Posted by: Moby Hick | Link to this comment | 10-18-14 5:31 AM
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Hey, pipe down, will you! It's the middle of the night!


Posted by: Opinionated Chamoru | Link to this comment | 10-18-14 6:05 AM
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It was bizarre that the article came up with a perfect test case to really complicate things and tried to use that as an illustration of how everything is simple.

Yes, I think you're right that it the article was muddled about that, and that the only bit it did successfully was get across that affirmative consent is simple and normal and how people generally operate, and there's nothing surprising about a failure to obtain affirmative consent turning into a serious problem.

But if failures to obtain affirmative consent are going to punishable by expulsion, and that is one, I don't see how that's not potentially punishable by expulsion if the receptive partner is angry or upset enough to report it. If that seems unjust, well, then, I think it might be worth acknowledging conflicts between intuitions about what kind of interactions ought to be private matters and the potential consequences of the law.

I simultaneously have the strong intuition that Harding's right that anyone describing the interaction in the show as necessarily rape or close to it is off-base,* but also that if the receptive partner were angry or upset enough to report it, there wouldn't be anything unjust about that. What I think Harding is pushing back against is an idea that an affirmative consent standard requires that any violation of that standard be conceptualized as always rape or close to it, regardless of the reaction of the parties.

In the context of the show, what was presented was Danny behaving badly in a way that wasn't, in the context of his relationship with Mindy, seriously frightening or violating, so it was a personal matter between them rather than something where it made sense to call in the authorities. But if he had been wrong (or, even more wrong than he actually was) about that, that risk is all on on him, given that he was actually behaving badly in a way that could have been very serious.

At the risk of being banned, I think clew's car theft analogy is a pretty good one. It eliminates anything special about sexual assault -- theft is a pretty simple crime, and someone who takes your car keys and drives off with your car has stolen it, whether or not they bring it back later. But a housemate who's borrowed the car before? Depending on the relationship and the circumstances, that might be anything from perfectly all right, to irritating, to a seriously asshole thing to do, to something that it would be perfectly normal to call the cops over. There's an area in the middle where it would make sense for the car owner to both be angry and to think that someone telling them "He stole your car, you should call the cops" was blowing it out of proportion in an unproductive kind of way. But there's not really any circumstance where the guy who took the car without permission would be entitled to feel put upon if the owner did call the cops.

It's not so much that everything related to sexual assault is simple, but that it's not complicated in a way that we don't deal with all the time in other areas of life.

*I do think this is underexplained -- I'm really putting words in her mouth here -- so your griping with the article is absolutely reasonable.


Posted by: LizardBreath | Link to this comment | 10-18-14 7:12 AM
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theft is a pretty simple crime, and someone who takes your car keys and drives off with your car has stolen it, whether or not they bring it back later

You're killing me, Smalls. An acquaintance who's had permission to use the vehicle on a prior occasion and brings it back is not going to meet the elements of the theft code. Charges, if they are pursued, are done under the joyriding code, which deals with temporary unauthorized control of a vehicle.


Posted by: gswift | Link to this comment | 10-18-14 7:59 AM
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||

I posted a photo of myself, at an aerial ballet class. Lumbering and awkward, but hey.

|>


Posted by: heebie-geebie | Link to this comment | 10-18-14 8:10 AM
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103: Eh. theft, joyriding, I was wrong to say that even car theft is completely simple. But it's not the kind of complicated that society gets bent out of shape over. There is a huge safe area defined by affirmative consent -- don't take anything that the owner hasn't given you permission to take -- and we all happily spend most of our time there. Once you're outside of that area, there still are going to be situations where calling the cops would be an overreaction, but the guy who took the car doesn't get to make that call or feel righteously aggrieved that he disagrees with it.


Posted by: LizardBreath | Link to this comment | 10-18-14 8:31 AM
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I had a co-worker who bought her first car in her life. Her grandson, about 14 or so, took it out for a spin and totaled it. The insurance check didn't clear and she lost the whole thing.


Posted by: Moby Hick | Link to this comment | 10-18-14 8:42 AM
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Maybe we need an equivalent for sex crimes between people in relationships, like attempted joyride of the anus.


Posted by: gswift | Link to this comment | 10-18-14 10:41 AM
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I don't want to know what "grand theft auto of the anus" is, do I?


Posted by: lurid keyaki | Link to this comment | 10-18-14 10:50 AM
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I simultaneously have the strong intuition that Harding's right that anyone describing the interaction in the show as necessarily rape or close to it is off-base,* but also that if the receptive partner were angry or upset enough to report it, there wouldn't be anything unjust about that. What I think Harding is pushing back against is an idea that an affirmative consent standard requires that any violation of that standard be conceptualized as always rape or close to it, regardless of the reaction of the parties.

Okay, I am mollified. This is a self-consistent statement. From Harding, I got something very different. She in fact argued that Mindy's enthusiasm up till that moment would be sufficient defense against any charge.

(As for me, I have to admit, there's a part of me that recoils against the idea that that interaction could get Mindy's boyfriend kicked out of school. It strikes me both as really bad behavior and as behavior that I think of as belonging to the private sphere. That might be the kind of status quo bias Ezra was talking about, and I'm not claiming my intuitions are right or just.)


Posted by: Tia | Link to this comment | 10-18-14 12:47 PM
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As for me, I have to admit, there's a part of me that recoils against the idea that that interaction could get Mindy's boyfriend kicked out of school.

Well, seriously, it's wildly implausible that it would. I mean, regardless of the affirmative consent and preponderance of the evidence standards, I'm not aware of any regulation that requires that the only possible penalty for any sexual offense is expulsion. As described, the period over which he was touching her in a manner she had not consented to was literally about a second, and he backed off immediately, both of which seem to me to be mitigating: if we're talking about literally that conduct, expulsion would seem like a fairly disproportionate response to me as well (assuming we're in a college disciplinary hearing where everyone's agreed on exactly what happened. )

But using an affirmative consent standard, sure, that's conduct that could constitute a sexual assault, and someone might get expelled for something no more severe than that sometime, which would seem kind of unjust to me too. Sort of like it would seem like a jerk thing to do for Moby's coworker to call the cops on her grandson, even though joyriding is against the law. I just don't think that the ability to find a case that could lead to unjust results if everyone behaves unreasonably means there's a problem with the suggested standard -- there are always going to be problematic cases.


Posted by: LizardBreath | Link to this comment | 10-18-14 2:40 PM
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I think she did call the cops on her grandson, because of the insurance, which she didn't know she wasn't going to get.


Posted by: Moby Hick | Link to this comment | 10-18-14 3:21 PM
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"Unless someone like you cares to stay where he ought,
Nothing is going to get better, Mindy's butt."


Posted by: Opinionated Lorax | Link to this comment | 10-18-14 3:22 PM
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Wait, why didn't the insurance check clear?


Posted by: teofilo | Link to this comment | 10-18-14 3:26 PM
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I didn't ask. She was very upset.


Posted by: Moby Hick | Link to this comment | 10-18-14 3:45 PM
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||

Hey teo, picture you might get a kick out of in the Flickr pool.

|>


Posted by: Sifu Tweety | Link to this comment | 10-18-14 4:20 PM
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Ha. Are any of those from the Southwest? That museum sponsored some of the important expeditions that discovered well-preserved examples in caves.


Posted by: teofilo | Link to this comment | 10-18-14 4:29 PM
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Most of the North American examples in this exhibit seemed to be Lakota for whatever reason.


Posted by: Sifu Tweety | Link to this comment | 10-18-14 4:36 PM
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Although the picture I meant was the Tlingit one, actually.


Posted by: Sifu Tweety | Link to this comment | 10-18-14 4:37 PM
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Ah, that one was of interest as well.


Posted by: teofilo | Link to this comment | 10-18-14 5:17 PM
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I sort of completely missed this conversation, but I'll throw this out there anyway. In the context of the show it's totally unclear what exactly happened (i.e., what part of Danny's body came in contact with Mindy's anus), because Standards and Practices. Isn't there a meaningful difference here between the two likely possibilities?

Trying to "sneak" anal intercourse is both (a) not at all OK and (b) wildly unlikely to succeed, in the sense that, come on, you're not going to get very far down that road without some cooperation (or coercion). On the other, um, hand, slipping a finger down around, or in, seems like, sure, it could backfire (because some people are really uptight about their butts) but it's arguably within the reasonable bounds of, "give it a try and see if she likes it." (Which applies to a bunch of stuff between new sex partners, it seems to me, and which I think is at the crux of why some people think "affirmative consent" means "hooking up becomes unbearably awkward.")


Posted by: Yawnoc | Link to this comment | 10-18-14 8:27 PM
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I watched maybe three minutes of that show and they were clearly talking about a penis. She was asking a male friend if it could have been an accidental insertion. The friend, by way of analogy, explained that men always know where their penis is because it's their most treasured possession and that therefore it wasn't accidental.


Posted by: Moby Hick | Link to this comment | 10-18-14 9:04 PM
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Isn't hooking up already unbearably awkward?


Posted by: teofilo | Link to this comment | 10-18-14 9:19 PM
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First you have to ask if they've been to Liberia recently, then you have to ask if you can put your finger up their butt. Romance is dead, killed by germs and California laws.


Posted by: Moby Hick | Link to this comment | 10-18-14 9:36 PM
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Asking in the opposite order is technically allowed but strongly discouraged.


Posted by: teofilo | Link to this comment | 10-18-14 10:00 PM
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OK, I guess I'm wrong about 120.1. I didn't rewatch to be sure or anything. I suppose I mentally inserted some ambiguity because of 120.2(b)—the whole idea of trying to "slip it in" with a new girlfriend who may not be up for it is just incredibly implausible (or too, too rapey).


Posted by: Yawnoc | Link to this comment | 10-18-14 10:10 PM
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She was asking a male friend if it could have been an accidental insertion. The friend, by way of analogy, explained that men always know where their penis is because it's their most treasured possession and that therefore it wasn't accidental.

You know, this has gotten a fair amount of mockery, but I've been on the receiving end of (momentary) genuinely accidental dick-misplacement (under circumstances where there was no interest in actually having anal sex). Possibly my sex partners were unusual, but I can swear that this could happen accidentally. (Accidental actual penetration sounds completely unlikely, of course.)


Posted by: Golda Meir | Link to this comment | 10-19-14 9:21 AM
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