University of Warwick suspends 11 students over rape jokes Watch

Poll: Opinion on Warwick Rape Joke Students
Free speech and you should be allowed to have any opinion. (80)
17.66%
Just a joke and taking too seriously. (77)
17%
It was private and their business (75)
16.56%
They should have mediation and sort it out between themselves. (35)
7.73%
Officers and the ones making jokes about known students should be expelled. (86)
18.98%
The university should consider damage to its reputation and expell. (100)
22.08%
DrMikeHuntHertz
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#521
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#521
Looks like the University of Warwick is about to rape 11 students.

/expells self
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Brachioradialis
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#522
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#522
If you put "freedom to make disgusting jokes" (paraphrasing 27 pages of defense here) ahead of a person's right not the be intimidated or mocked for having suffered a sexual assault, then you need your head looking at.
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DrMikeHuntHertz
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(Original post by Brachioradialis)
If you put "freedom to make disgusting jokes" (paraphrasing 27 pages of defense here) ahead of a person's right not the be intimidated or mocked for having suffered a sexual assault, then you need your head looking at.
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Notoriety
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(Original post by nulli tertius)
Thilakawardhana is a case that gave rise to both disciplinary and FTP procedures. Although the disciplinary sanction imposed was minor, the court did not raise any suggestion that disciplinary action was impermissible on freedom of speech grounds.
But that concerned threatening someone on a public post, not merely being offensive in private.
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Brachioradialis
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(Original post by DrMikeHuntHertz)
Do tell me what fundamental, philosophical points we can learn from these wonderful men to improve society.
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Axiomasher
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#526
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(Original post by rhombus chombus)
...Ones like "love Hitler, hate Jews" and "Sometimes it's fun to just go wild and rape 100 girls" are perfectly fine (although not necessarily funny) in the right company, though. Shouldn't need to say this, but obviously it's disgusting and wrong to say those things with any sincerity.
If I though my kids at university were participating in this kind of 'banter' I'd treat it as something of a major parenting failure on my part. All young people make mistakes and come out with ignorance and rubbish that their parents would be embarrassed at but these particular communications suggest a deep moral vacuum in these students' personalities. If they were, say, a bunch of 12 year olds I might have been a little less critical, but they weren't.
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nulli tertius
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(Original post by Notoriety)
But that concerned threatening someone on a public post, not merely being offensive in private.
Yes, and no doubt the perpetrator in that case was wearing different coloured socks.

The point is that disciplining someone for both a public posting and a private posing to the victim (there was both in the case I cited) was not seen as contravening the perpetrator's human rights.

The question is whether a private posting which one of the recipients then publishes to the world (which is reasonably foreseeable), is materially different in a legally relevant way.

The answer isn't a foregone conclusion either way, but saying "that was different" isn't an answer in itself.
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nulli tertius
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#528
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(Original post by rhombus chombus)
It's pretty creepy to make rape jokes about somebody specific, in private or otherwise.
I've been saying throughout this thread that he key is the personalisation and it runs wider than rape. Someone tells a joke about Paddy and Mick that turns on their lack of intelligence, it is mildly racist but potentially still funny. The same joke told about Patrick O'Leary in room 52 and Michael O'Donnell in room 27 is just offensive. That doesn't mean you can't make jokes about real people but they have to be made with sympathy, indeed affection, for the victim. Jokes about public figures are closer to jokes about hypothetical characters, but there comes a point at which the offensiveness breaks through the carapace of protection that public figures erect.
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Notoriety
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(Original post by nulli tertius)
Yes, and no doubt the perpetrator in that case was wearing different coloured socks.

The point is that disciplining someone for both a public posting and a private posing to the victim (there was both in the case I cited) was not seen as contravening the perpetrator's human rights.

The question is whether a private posting which one of the recipients then publishes to the world (which is reasonably foreseeable), is materially different in a legally relevant way.

The answer isn't a foregone conclusion either way, but saying "that was different" isn't an answer in itself.
Ahh, my issue was not that HR would prevent the withdrawal of the student. It was that the cases you provided did not prove that HR would not come into play because the cases were HR did not come into play were materially different to the case at hand.

I hadn't noticed that the 170-word offensive message was to PS, but surely that makes it even more dissimilar to the Warwick case. The person who created the offensive post decided to send it to the person who he was threatening. Very different to sending it to friends, who consequently breach your trust. The foreseeability that the threatened person might see it is quite different.

— — Quite obvious that Art 10 would be engaged with this case, and the test of proportionality would be applied. It would be more proportionate to expel a student who has been threatening than to exclude a student for being merely offensive. It becomes more likely an Art 10 claim would succeed here than were it used in the medicine case. In Ngole, Art 10 was argued and expulsion was found to be proportionate because of the professional dimension. It being established that regulation of professions (the legitimate aim in that case) requires a greater degree of flexibility against the Convention text, in order for regulation to be effective, paras 78-81.
— — In Ngole, at para 109, the judge noted counsel argued (relying on Sanders v Kingston, Livingstone, Sandown, Vajnai and Gunduz) that the right not to be offended should not trump the right to give offence. The judge did not go into detail because, as I raised earlier, the case was not about controlling offensiveness. But the judge did note Lord Dyson MR in Core Issues Trust said that offensiveness is a common standard to determine "decency" which is used to regulate professional conduct. This does not really support your argument, because again this case is about FTP and FTP has greater ECHR flexibility per paras 78-81.

Further, s127 Comms Act 2003 has some interesting jurisprudence in this area which suggests that jokes should be protected to an extent and the context in which they were posted should influence how offensive the court perceives them. However it is important to note this concerns withdrawing liberty rather than granting liberty, so it is materially different to the case at hand also.
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nulli tertius
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(Original post by Notoriety)
Ahh, my issue was not that HR would prevent the withdrawal of the student. It was that the cases you provided did not prove that HR would not come into play because the cases were HR did not come into play were materially different to the case at hand.

I hadn't noticed that the 170-word offensive message was to PS, but surely that makes it even more dissimilar to the Warwick case. The person who created the offensive post decided to send it to the person who he was threatening. Very different to sending it to friends, who consequently breach your trust. The foreseeability that the threatened person might see it is quite different.

— — Quite obvious that Art 10 would be engaged with this case, and the test of proportionality would be applied. It would be more proportionate to expel a student who has been threatening than to exclude a student for being merely offensive. It becomes more likely an Art 10 claim would succeed here than were it used in the medicine case. In Ngole, Art 10 was argued and expulsion was found to be proportionate because of the professional dimension. It being established that regulation of professions (the legitimate aim in that case) requires a greater degree of flexibility against the Convention text, in order for regulation to be effective, paras 78-81.
— — In Ngole, at para 109, the judge noted counsel argued (relying on Sanders v Kingston, Livingstone, Sandown, Vajnai and Gunduz) that the right not to be offended should not trump the right to give offence. The judge did not go into detail because, as I raised earlier, the case was not about controlling offensiveness. But the judge did note Lord Dyson MR in Core Issues Trust said that offensiveness is a common standard to determine "decency" which is used to regulate professional conduct. This does not really support your argument, because again this case is about FTP and FTP has greater ECHR flexibility per paras 78-81.

Further, s127 Comms Act 2003 has some interesting jurisprudence in this area which suggests that jokes should be protected to an extent and the context in which they were posted should influence how offensive the court perceives them. However it is important to note this concerns withdrawing liberty rather than granting liberty, so it is materially different to the case at hand also.
I think the problems for the perpetrators are:-

(a) the private communication point does not work because it is reasonable forseeable that one of the fairly numerous recipients would distribute it. You are saying that is a breach of trust (I think you are using that as a synonym for confidence) but any duty of confidence has to be inferred merely from the fact the group is private. The circumstances including the absence of warnings of the existence of the duty mean that the duty might not exist at all and it if does exist, the risk of dissemination despite the duty was high. The failure of the private communication point means the perpetrators are in no better position than if they had posted the messages publicly.

(b) The personalised nature of many of the comments identifies a victim. The moves the case out of the university as moral censor inquiringly as to the tastefulness of the comments and into the university acting to protect an individual in respect of whom the university had the right and arguably the public law duty to act.

(c) I think there is a third point. The comments aren't really a joke. By referring to the comments as a joke what the perpetrators really mean is that the comments shouldn't be given their natural meaning but instead should be seen as comments to which no consequence should be paid. It is the losing argument in Carlill v Smoke Ball Company and in Edwards v Skyways. If this had been a true joke with a punchline, the public couldn't have received the comment without also having any implied threat in the comments dissipated.
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Notoriety
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(Original post by nulli tertius)
I think the problems for the perpetrators are:-

(a) the private communication point does not work because it is reasonable forseeable that one of the fairly numerous recipients would distribute it. You are saying that is a breach of trust (I think you are using that as a synonym for confidence) but any duty of confidence has to be inferred merely from the fact the group is private. The circumstances including the absence of warnings of the existence of the duty mean that the duty might not exist at all and it if does exist, the risk of dissemination despite the duty was high. The failure of the private communication point means the perpetrators are in no better position than if they had posted the messages publicly.

(b) The personalised nature of many of the comments identifies a victim. The moves the case out of the university as moral censor inquiringly as to the tastefulness of the comments and into the university acting to protect an individual in respect of whom the university had the right and arguably the public law duty to act.

(c) I think there is a third point. The comments aren't really a joke. By referring to the comments as a joke what the perpetrators really mean is that the comments shouldn't be given their natural meaning but instead should be seen as comments to which no consequence should be paid. It is the losing argument in Carlill v Smoke Ball Company and in Edwards v Skyways. If this had been a true joke with a punchline, the public couldn't have received the comment without also having any implied threat in the comments dissipated.
No, I was not talking about confidence and I purposefully avoided talking about it by using generic "breach of trust". But I don't think that there must be confidence for the posters to claim they reasonably never expected other participants to post the messages publicly. This is important because it affects how we determine the harm caused by the messages as they were originally posted, i.e. by A) "posting" they never foresaw the direct consequence of B) "distress" to the "victims" of the comments. This therefore limits the inherent culpability of the comments, making expulsion potentially less proportionate.

The rest is arguable, and I think it had been argued extensively already with little progress.
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nulli tertius
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(Original post by Notoriety)
No, I was not talking about confidence and I purposefully avoided talking about it by using generic "breach of trust". But I don't think that there must be confidence for the posters to claim they reasonably never expected other participants to post the messages publicly. This is important because it affects how we determine the harm caused by the messages as they were originally posted, i.e. by A "posting" they never foresaw the direct consequence of B "distress" to the "victims" of the comments. This therefore limits the inherent culpability of the comments, making expulsion potentially less proportionate.
I think liability to punishment depends on whether publication was reasonably foreseeable ie an objective test. The level of punishment should depend on actual foresight ie a subjective test and actual and potential harm caused with a leaning towards actual harm.
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Bang Outta Order
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#533
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#533
Why is this still going on? They were suspended, not kicked out. They'll be back soon and better be without more rape jokes.
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Notoriety
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#534
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(Original post by nulli tertius)
I think liability to punishment depends on whether publication was reasonably foreseeable ie an objective test. The level of punishment should depend on actual foresight ie a subjective test and actual and potential harm caused with a leaning towards actual harm.
Perhaps you're right that it would be treated this way by the courts, though I have some doubts about its usefulness. It would mean that only people who are entirely sure that their comments would not be shared would be safe (breach of confidence would be unforeseeable (usually), but what about where you might foresee something equivalent to whistle-blowing (even if it does not meet the public interest test)?).

Also say you make rape comments quite seriously, tell your friend to send them to the victim of the comments, and realise there is maybe a 50/50 chance they will send the comments, that would be as culpable as the Warwick case where there is a very high likelihood that the comments would not be shared with third parties. After all, there are millions of chats like this in the world (which are hugely embarrassing to the participants), and only 10 or so have been outed to the press in this way.

I don't think that stuffy old judges, who don't truly understand social media and would be shocked if someone burped without excusing themselves, can be trusted to determine what is reasonable behaviour in the modern age. E.g. R v Brown.
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NYU℠
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#535
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(Original post by Notoriety)
Perhaps you're right that it would be treated this way by the courts, though I have some doubts about its usefulness. It would mean that only people who are entirely sure that their comments would not be shared would be safe (breach of confidence would be unforeseeable (usually), but what about where you might foresee something equivalent to whistle-blowing (even if it does not meet the public interest test)?).

Also say you make rape comments quite seriously, tell your friend to send them to the victim of the comments, and realise there is maybe a 50/50 chance they will send the comments, that would be as culpable as the Warwick case where there is a very high likelihood that the comments would not be shared with third parties. After all, there are millions of chats like this in the world (which are hugely embarrassing to the participants), and only 10 or so have been outed to the press in this way.

I don't think that stuffy old judges, who don't truly understand social media and would be shocked if someone burped without excusing themselves, can be trusted to determine what is reasonable behaviour in the modern age. E.g. R v Brown.
R v Brown has also essentially been reaffirmed in R v BM [2018], I don’t know if you saw. They could have relied on much better reasoning, and gone back on R v Brown, but that would be asking too much. *sigh*
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nulli tertius
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(Original post by Notoriety)
Perhaps you're right that it would be treated this way by the courts, though I have some doubts about its usefulness. It would mean that only people who are entirely sure that their comments would not be shared would be safe (breach of confidence would be unforeseeable (usually), but what about where you might foresee something equivalent to whistle-blowing (even if it does not meet the public interest test)?).

Also say you make rape comments quite seriously, tell your friend to send them to the victim of the comments, and realise there is maybe a 50/50 chance they will send the comments, that would be as culpable as the Warwick case where there is a very high likelihood that the comments would not be shared with third parties. After all, there are millions of chats like this in the world (which are hugely embarrassing to the participants), and only 10 or so have been outed to the press in this way.
I don't think you are right about the "very high". I think in both the Warwick and the Exeter cases, what you have a large groups of students with no real shared ideology and little personal loyalty. The Exeter group might have started as a tightly knit group of friends but it clearly expanded as the message board became used for law society communications. It looks as though the Warwick group started large. If the group was threatening to cut off members' tongues between the low and high water marks, then betrayal might be understandable, but membership of these groups were available for the asking.

I don't think that stuffy old judges, who don't truly understand social media and would be shocked if someone burped without excusing themselves, can be trusted to determine what is reasonable behaviour in the modern age. E.g. R v Brown.
Judges, like most professions, are communicating privately electronically and they are very clear about what is and what is not in the public domain.
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Notoriety
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(Original post by NYU2012)
R v Brown has also essentially been reaffirmed in R v BM [2018], I don’t know if you saw. They could have relied on much better reasoning, and gone back on R v Brown, but that would be asking too much. *sigh*
Didn't actually see this, but it is the CA so quite impossible for it to ignore HL precedent (especially one as prominent and as controversial as R v Brown!). Maybe if Denning were about and on the Crim side. Likely need statute to correct it.

We had some changes in the law about the production of pornography in the UK, too (in 2014). Proscribing extreme pornography and I think the tagline was "Parliament bans face-sitting" -- a technical change in law which had adverse consequences but still. Makes it unlikely that liberal sexual ideas will take over Parliament any time soon.

(Original post by nulli tertius)
I don't think you are right about the "very high". I think in both the Warwick and the Exeter cases, what you have a large groups of students with no real shared ideology and little personal loyalty. The Exeter group might have started as a tightly knit group of friends but it clearly expanded as the message board became used for law society communications. It looks as though the Warwick group started large. If the group was threatening to cut off members' tongues between the low and high water marks, then betrayal might be understandable, but membership of these groups were available for the asking.

Judges, like most professions, are communicating privately electronically and they are very clear about what is and what is not in the public domain.
Well, I will defer to you re how the youth communicate and the inherent expectations of the participants in those chats. You clearly know an awful lot more about it than me (somehow). Unless the types of chats here are in fact different to those used by middle-aged professionals who are work colleagues.

The Exeter chat was not a large chat, nor was it a law society chat; it was just a group chat for friends. I cannot speak about the Warwick chat.
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GodAtum
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Latest news development: https://www.bbc.co.uk/news/newsbeat-47072323
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Vinny C
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#539
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Brit jokes have always been no holds barred but in the past, they have been told selectively and in private. Unfortunately, the internet has made them available to a wider audience. Maybe that campus cat has been passing them on, lol.
Last edited by Vinny C; 1 month ago
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