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Contemplations from ChaosFarm
JD, as always, finds the rarely interrupted tranquility at ChaosFarm to be an excellent place for thinking about the recent difficulties that have occurred in Oberlin College. Most notable among these difficulties has been the borderline contempt for the rule of law and the ignorance of history.
New COVID-19 seXXXcapades manual
ChaosFarm contemplation includes musing over the student’s new, COVID-19 proof seXXXcapades guidelines. These guidelines require neither masks nor hazmat suits that could interfere with intimacy.
Of skunks and woodpeckers
Not even the cacophony of the woodpeckers behind the ChaosFarm farmhouse can annoy like the Oberlin College BOT. Moreover, the fragrance of the patrolling skunk passing under JD’s open bedroom window each night at 3:00 am is small potatoes compared to the OC BOT’s fanatical neo-puritanism.
The BOT’s recent penchant for replacing the rule of law with the rule of righteousness is a twisted salute to earlier times when the College stood up against the law for just reasons. The case of Gibson’s Bakery v Oberlin College is a case in point, discussed extensively elsewhere in this blog. A College fueled regenerative gossip mill slandered the bakery, leaving behind a lawyer’s dream paper trail that created a slam dunk legal case for the Gibsons. This managerial sloppiness has made fools out of the College’s “leaders.”
Contemplating the new age of controlling seXXXcapades between consenting adults, one wonders about the possible legal implications to the College in getting in the middle of this. In the case of non-consenting adults, the College may be usurping some of the legal system’s prerogatives.
A further interesting complication comes when a seXXXcapade participant is underage. Does the College have an obligation in this instance to be in loco parentis? The college seems to relish being the ringmaster in the seXXXcapades circus.
There is a recurring observation in financial markets when securities become severely overvalued. Someone will always say, “This time it’s different” and will cite a reasonable-sounding argument for why this is so. Most times, history proves itself to be more relevant than irrelevant. In many matters, Oberlin College seems to have acquired a divine right to rescind history because past events are imperfect. True enough, but maybe the flaws in the revisionist views are even more flawed.
Oberlin College Sexcapades
9/10/2020 — See seXXXcapades manual.
8/10/2020 — There have been additional legal developments in this story since it was originally published.
There appears to be a body of anecdotal evidence at Oberlin College suggesting that there might be an institution-wide interest in sex. Indeed, the College has inserted itself into that matter from day one.
In this environment, Oberlin College’s current take on sexual conduct seems to be “This time is different — or is it?” Each incident will have differences to be sure, but this view bypasses the legal problem of when and how the College should police bedroom intimacy involving adult students.
The College believes that there could be instances where a student’s interest in sex could rise to a level wherein emotions might trump good judgment. Preparing for this contingency, the College has established an extra-legal court for handling matters when one person might feel sexually wronged by another.
This extra-legal court has a soviet-style 100% conviction rate for all defendants brought before it. Procedural details such as whether or not a plaintiff tells a consistent story are irrelevant. In potentially criminal sexual encounters, this extra-legal “court” might interfere with the criminal court system’s responsibilities. Moreover, in this extra-legal “court,” the accused is not guilty until proven innocent but is automatically guilty.
Professor Jacobson of Cornell Law School and the Legal Insurrection Foundation has written a great spoof of student sexual conduct in Oberlin College’s parallel universe system. The good professor’s careful attention to XXX-rated details is commendable. His article would be hilarious if it were indeed a spoof, but it is not. He conveys two horror tales that have happened, and that in are no way funny.
The need for College-wide sex education
Professor Jacobson’s report shows the need for some primary sex education for the men, women, and the kangaroo court jurists of Oberlin College. See proposed seXXXcapades guidelines.
In the current situation, the blind are leading the blind. Few seem to recognize when a member of the opposite sex is getting turned on or turned off. Many of the men and women involved in these incidents do not recognize when a man’s animal instincts are taking full control. Moreover, many of the women, in particular, seem to have no idea how to either recognize a deteriorating situation or how to calm things down before disaster strikes. Sex education at Oberlin must cover more than how to outsmart sperms, eggs, and COVID-19.
Professor Jacobson’s legal analysis of two Oberlin student sexcapades is at https://legalinsurrection.com/2020/05/oberlin-college-male-student-tries-and-fails-to-obtain-injunction-halting-allegedly-biased-sexual-assault-hearing/#more. His analysis follows:
An Oberlin College case we have followed involved an expelled Oberlin College male student (we’ll call him “John Doe No. 1”) who alleged that the Oberlin College sexual assault hearing process was so rigged against men that it had a 100% conviction rate for cases that went to hearing, at least during the period of time relevant to that case. Now there is another lawsuit by a different student raising similar issues of an allegedly biased campus process.
John Doe No. 1 Case
John Doe No. 1’s case involved whether a female student gave “consent” as defined by Oberlin College to what on the surface was a consensual sexual encounter, as I wrote in December 2017, Lawsuit: Oberlin College sexual assault hearing process rigged, 100% conviction rate:
The details of the sexual encounter and recriminations are all too familiar to anyone who has read the complaints being filed around the country regarding higher education sexual assault adjudications.
According to the Complaint, the encounter started as consensual by everyone’s account, including sexual intercourse. There were text messages and other evidence that at least at the start, both parties were on board. At some point, the female asked for intercourse to stop because she was experiencing physical discomfort from the intercourse, and the male stopped. At that point the male requested that the female perform oral sex on him, and she did.
The alleged violation of the campus code took place only on the issue of consent to oral sex, not the preceding intercourse and other sexual relaxations. Just prior performing oral sex, the female made a comment that she was “not sober.” That comment would become the central issue as to whether the female was “incapacitated” (and therefore unable to give true consent) under the Oberlin code and whether the male reasonably should have known that.
As in so many cases, the allegation of sexual assault was not made immediately, but only after a period of time. There was no claim of use of force during the female’s initial interactions with friends or interview with an investigator. At the hearing that would change, and she alleged the use of force to push her head down during oral sex.
John Doe No. 1 had his case dismissed in the federal district court on legal grounds, as I wrote in April 2019, Male student lawsuit against Oberlin College dismissed despite possibly flawed sexual assault disciplinary decision:
In the Order (pdf.)(full embed at bottom of post), the Court ruled that plaintiff, though having cast doubt on the correctness of the disciplinary panel ruling against him, had failed to allege facts showing such error was due to discrimination against men. Accordingly, the Court dismissed the federal claims with prejudice, but dismissed related state law claims (which might not require such a causal connection to sex discrimination) without prejudice. That means that John Doe can bring the state law claims in state court (and of course, can appeal the dismissal to the 6th Circuit Court of Appeals.)….
The Court, however, found insufficient allegations of a causal connection to sex discrimination:
With respect to the second prong of the erroneous outcome standard, the court finds that Plaintiff has not alleged facts showing “a ‘particularized…causal connection between the flawed outcome and gender bias.’” Miami Univ., 882 F. 3d at 593 (citing Cummins, 62 Fed. App’x. at 452 (quoting Yusuf, 35 F.3d at 715.)) The Sixth Circuit explains that, “[s]uch allegations might include, inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender.” Miami Univ., 882 F.3d at 594 (quoting Yusuf, 35 F.3d at 715). In an effort to show this particularized causal connection, Plaintiff asserts: (1) gender bias pervades the entire adjudication process, illustrated in part by comments made by Dr. Raimondo, (2) Campus Climate Statistics for 2015–2016 show gender bias, and (3) the Dear Colleague Letter and the OCR Investigation created an environment ripe for such gender bias. The court finds that, taken together, these assertions are insufficient to meet Plaintiff’s pleading burden.
That case now is on appeal and awaiting a decision from the 6th Circuit.
John Doe No. 2 Case
The alleged systemic hostility to male students is the subject of a second lawsuit filed in late March 2020 by another male student, who we’ll call John Doe No. 2. That second case has a somewhat unusual history, from what we can gather from the court docket and filings. But like John Doe No. 1, John Doe No. 2 finds himself appealing a dismissal.
The case originally was filed in state court (the same court as the Gibson’s case, but assigned to a different judge). John Doe No. 2 sought an Ex Parte Temporary Restraining Order against the college to prevent the disciplinary process from moving towards a hearing, which because of the campus shutdown due to the coronavirus pandemic, may potentially include a telephonic or video hearing in lieu of an in-person hearing. The suit is against the college, the Oberlin College Board of Trustess, Rebecca Moseley (Oberlin College’s Director of the Office of Equity, Diversity, and Inclusion, and Title IX Coordinator), and various John Doe Defendants to be identified.
The case involved the now-familiar dispute over whether a female student gave “consent” to sexual interaction while intoxicated, the same issue as in John Doe No. 1’s case.
The Alleged Incident
The Verified Complaint in state court recites this description given by Jane Roe given to a coach as described by the coach:
“About two weeks before Thanksgiving on a Wednesday she was at the Seo’ after the Seo’ they went back to Barrows. [Roe] says she was very drunk and doesn’t remember a lot. They were on a couch hooking up and he started fingering her. She remembers it happening but not a lot of details but knows that she didn’t want it to happen. She remembers him asking her if she wanted to go downstairs for somewhere more private. She doesn’t remember how she responded or if she did. They went downstairs and he inserted himself into her. She asked if he had a condom. He said no, and she freaked out, jumped away and then he stopped”
“he (Plaintiff) could’ve asked for consent, but I don’t know if he did and or if he did ask, I don’t even know if I gave it.”
“she didn’t realize for a while what had happened and it kind of just hit her this week [and that] [s]he has been struggling with whether or not to make a report.”
The Verified Complaint includes this description of an administrator’s interview with Jane Roe:
[Jane Roe] indicated that she and [Plaintiff) were best friends before the incident. She stated that they don’t speak now. The incident happened mid-November and she doesn’t remember all of the night and therefore, does not know if she consented. She indicated that she was in and out of knowing what was going on that night and does not remember saying yes to hooking up. She stated that they had previously started to hook up on a different occasion and she had stopped it that time. [Jane Roe] shared that she had to tell him to stop 3 times that first time but he did then listen. On that occasion [Jane Roe] told [Plaintiff] that she did not want to hook up because she did not want to ruin their friendship. She stated that she wanted an informal resolution to this that involved education for [Plaintiff) including the topics of alcohol and consent, healthy relationships, reading your partner’s cues, and hearing your partner.
The Need for Injunctive Relief
The Verified Complaint in state court alleged, among other things, the following grounds for the injunction requested:
1. Plaintiff John Doe’s causes of action in this matter are based on the unconstitutional and/or unconstitutionally gender-based discriminatory policies and procedures set forth in Oberlin College’s Sexual Misconduct Policy and the named Oberlin College Defendants’ implementation of said policies and procedures against him in response to false and wildly inconsistent allegations of sexual misconduct asserted by Jane Roe, a female student at Oberlin College (hereinafter, “the College).
[fn. 1 – Due to the nature of the allegations in this lawsuit, Mr. Doe is proceeding under the pseudonym “John Doe” and
identifies his accuser as “Jane Roe.” He identifies other Oberlin students by their initials.]
2. Jane Roe’s allegations against the Plaintiff fail to rise to the level of any threshold that would justify the Defendants’ decision to pursue a formal investigation into her allegations and ultimately subject him to a hearing process where he will not only face the penalty of expulsion from the College, but a permanent disciplinary record on his academic transcript.
3. The Oberlin College Defendants’ original assessment of Jane Roe’s allegations led them to conclude that her allegations against the Plaintiff should be resolved informally, without an investigation, and without any disciplinary action being taken against Plaintiff.
4. On or about December 12, 2019, which was at or about the time of Jane Roe’s initial allegations, Jane Roe agreed to informal resolution of her complaint and, at or about that same time, REBECCA MOSELY and/or Jane Roe conspired and agreed to not notify John Doe of the pend ency of the allegations that Jane Roe had made against him and/or the commencement and/or pendency of the Title IX process until after Oberlin College’s winter break had ended.
5. At the time that Jane Roe had made her initial allegations, again on or about December 12, 2019, physical evidence crucial to John Doe’s defense of the allegations made by Jane Roe existed in the form of electronically stored security video.
6. On or about December 12, 2019 and thereafter, neither Rebecca Mosely, nor any John Doe Defendant 1-5, nor any John Doe Defendant 6 -10, nor anyone else made any effort, whatsoever, to investigate the veracity of the allegations made by Jane Roe, nor took any steps to preserve any physical evidence that was, at that time, known, or should have been known, to exist.
7. John Doe was not notified of the existence of Jane Roe’s allegations and/or the commencement and pendency of the Title IX process against him until February 4, 2020. By the time that John Doe was notified of the existence of Jane Roe’s allegations and/or the commencement and pend ency of the Title IX process against him, the physical evidence referred to herein, i.e., electronically stored security video, had been destroyed.
The Verified Complaint then goes on to allege exhaustive details as to John Doe No. 2’s interactions with the administration as to a possible informal resolution of the dispute. That interaction allegedly became a formal complaint by Jane Roe against John Doe No. 2 after he complained to the administration that she was telling other students he was a rapist.
But by that time, John Doe No. 2 alleges that important electronic evidence had been destroyed. Faced with what he claimed was a rigged hearing process, John Doe No 2 requested court intervention.
18. Plaintiff respectfully asserts that if this Honorable Court does not immediately intervene and prevent the Oberlin College Defendants from proceeding with a fundamentally unfair sexual misconduct investigation and a hearing process that historically has been rife with unconstitutional, gender-based discriminatory policies and procedures, he will be irreparably harmed as evidenced by the fact that Oberlin College has boasted about its 100% conviction rate for students accused of violating its Sexual Misconduct Policy when their cases proceed to a formal hearing.2 Upon information and belief the College has never lodged any complaint against a female student for any alleged violation of the Title IX Sexual Misconduct Policy, including this case.
* * *
21. Thus, in an effort to try and prevent the irreparable harm that he will sustain if the Oberlin College Defendants are permitted to proceed against Plaintiff with their unconstitutional, gender-based discriminatory policies and procedures, the Plaintiff brings the within Complaint against the Defendants….
John Doe No. 2 also alleges that the concept of “consent” required under college procedure and practice is biased:
108. The fact that “consent’ is complicated and involves a multi factor approach and that the College stresses the need for male students to obtain “enthusiastic consent” before engaging in sexual contact and/or conduct with a female student further evidences Oberlin College’s discriminatory policies and procedures against male students.
Motion for TRO in State Court
John Doe No. 2 sought an ex parte TRO (Temporary Restraining Order, meaning it would be heard without the defendants being able to be heard) preventing the disciplinary process from moving forward.
I. Plaintiff hereby moves this Honorable Court for a Temporary Restraining Order and Preliminary Injunction pursuant to Ohio R. Civ. P. 65, immediately enjoining Defendants OBERLIN COLLEGE and OBERLIN COLLEGE Board of Trustees, and Oberlin College Title IX Coordinator Mosely, (hereinafter collectively referred to as the “Oberlin Defendants”) to cease the unconstitutional process into whether the Plaintiff has violated the Sexual Misconduct Policy of Oberlin College now underway, which may have consequences of the upmost importance, which are quasi-criminal in nature, and which deprive him of his state and/or federal constitutional rights to due process of law.
In his brief in support of the motion for an injunction, John Doe No. 2 explained why he believed the process was a punishment to which he should not be subjected:
Jane Roe’s allegations against the Plaintiff fail to rise to the level of any threshold that would justify the Defendants’ decision to pursue a formal investigation into her allegations and ultimately subject him to a hearing process where he will not only face the penalty of expulsion from the College, but a permanent disciplinary record on his academic transcript. In fact, the Oberlin College Defendants’ original assessment of Jane Roe’s allegations led them to conclude that her allegations against the Plaintiff should be resolved informally, without an investigation, and without any disciplinary action being taken against Plaintiff.
However, while Jane Roe initially requested Oberlin College to resolve her complaint against Plaintiff through the Policy’s Informal Resolution, after the Plaintiff agreed to Informal Resolution of the Complaint, Jane Roe abruptly, in an act of retaliation against Plaintiff, changed her mind and demanded the College to initiate the formal resolution process and formal investigation against Plaintiff after she learned that Plaintiff 1) retained counsel (which is Plaintiff’s right under the Policy) 2) merely sought information about Jane Roe’s allegations against him (which is Plaintiffs constitutional right) through the use of a private investigator, 3) that Plaintiff accused her of violating the Policy’s strict anti-retaliation by disclosing the College’s investigation into him to other students and that Plaintiff asked Oberlin’s Title IX Coordinator Defendant Mosely to instruct Jane Roe to no longer refer to Plaintiff as a “Rapist” to their mutual friends (which is Plaintiff’s right under the Policy’s strict anti-retaliation Policy), and 4) because Jane Roe was “upset” about “the [amount] of time it took for a response [to her Complaint]” from Plaintiff, which was caused and/or induced by her own agreement with the College to delay Notice to the Plaintiff for nearly two (2) months.5
[fn. 5 – The delayed Notice to Plaintiff of nearly two (2) months, which stemmed from an agreement between the College and Jane Roe, resulted in the loss and/or destruction of exculpatory evidence that Plaintiff would have otherwise used to prove his innocence against Jane Roe’s allegations. Specifically, the College, through its investigator admitted in an email on March 12, 2020 that due to a 45-day retention schedule, video surveillance for the fates of the incidents alleged by Jane Roe no longer exist. Only now, having induced a two (2) month delay, which caused the loss/destruction of exculpatory evidence, do Jane Roe and the College seek to prosecute Plaintiff for Jane Roe’s allegations against him.]
The College’s Policy does not permit a Reporting Party to change their preferred resolution of a complaint from informal to formal resolution for any reason or purpose, such as for the purpose of retaliating against a Responding Party for gathering, seeking, and/or obtaining information about the allegation(s) being made against them, and/or for engaging the services of an Advisor—which is expressly authorized under the Policy.
Nevertheless, only two (2) days after Plaintiff and Plaintiff’s counsel engaged the Informal Resolution Process by scheduling and thereafter meeting with Defendant Mosely, the College, in blind allegiance to Jane Roe, in violation of its own Policy, and in violation of its agreement with Plaintiff to proceed with Informal Resolution, advised Plaintiff that, at Jane Roe’s request, the College initiated the Formal Resolution process and formal investigation into Jane Roe’s Complaint against Plaintiff.
But there’s a twist as to the hearing process that perhaps precipitated the unusual emergency lawsuit, according to the brief:
Furthermore, as set forth below, in light of the recent unprecedented Coronavirus Pandemic, Oberlin College has closed and ordered the mandatory evacuation of its campus and cancelled all in-person classes as of March 16, 2020.
Accordingly, upon belief, the Oberlin Defendants are prepared to invoke a “Catch-all provision” set forth in its Policy which permits the College to violate a Responding Party’s rights (such as Plaintiff) by substituting, at its sole discretion, a live, three-member, unbiased hearing panel for a “hearing” to determine Plaintiffs responsibility, set before only “the Dean of Students (or designee) or the College may substitute an alternate method of adjudication at its discretion.”6
[fn 6 – Oberlin College’s Title IX Policy, attached hereto as Exhibit A.]
Oberlin’s Policy does not set forth any specifics whatsoever concerning the “alternate method of adjudication” that the College can commence in the event it cannot reasonably convene a Hearing Panel….
The Plaintiff respectfully asserts that this Honorable Court must grant a Temporary Restraining Order and Preliminary Injunction in this matter to prevent continuing damage and loss to Plaintiff to prevent the irreparable harm that he will sustain if the Oberlin College Defendants are permitted to proceed against Plaintiff with their unconstitutional, gender-based discriminatory policies and procedures, as evidenced in Plaintiffs Verified Complaint and as set forth herein.
While it’s understandable that someone would not want to enter an adjudicatory process he believes to be rigged against males, that presents legal problems because there is no actual process or result applicable to John Doe No. 2 as to which the court could rule, raising questions if the dispute is “ripe” for adjudication.
The state court judge ordered (pdf.) the defendants to respond to the motion by April 3, 2020. But before that happened, the defendants “removed” (pdf.) the case from state court to federal court. Removal of a case is permitted under certain circumstances.
Federal Court – Dismissal
Once in federal court, things went downhill quickly for John Doe No. 2.
While there is no transcript available electronically, there appears to have been a conference call at which the judge expressed an intent to dismiss the case as not “ripe” for adjudication. There is no indication on the court docket that at that point the defendants even had filed a written opposition to the motion or Answer to the Complaint. I requested copies of any opposition filings from counsel for both plaintiff and defendants and received no response.
On April 1, 2020, John Doe No. 1 filed a Motion for Reconsideration of Court’s Expressed Intention To Dismiss Plaintiff’s Claims And Deny Plaintiff’s Motion for a Temporary Restraining Order (pdf.), based on a recent decision in an unrelated case against the University of Michigan in which an injunction was entered.
The supporting legal argument by John Doe No. 2 focused on the possibility of a hearing not in-person, with a lengthy discussion of a case against the University of Michigan in which an injunction was granted against a process that did not guarantee an in-person hearing:
Plaintiff respectfully asserts that Oberlin College’s Sexual Misconduct Policy contains provisions and procedures that would allow the College to make an adjudication that he violated said policy by engaging in non-consensual sexual conduct with another student without providing him with the constitutionally mandated live hearing requirement and without providing him with the constitutionally mandated opportunity to confront his accuser and any other adverse witnesses against him in the presence of a neutral fact-finder….
Just as the district court in Doe v. University of Michigan, ultimately held that the University of Michigan’s sexual misconduct policies were unconstitutional and that University of Michigan could only proceed with its disciplinary proceedings against the plaintiff if it provided the plaintiff with a live hearing and the opportunity to crossexamine his accuser and other witnesses,38 so too should this Honorable Court in respect to the Oberlin Sexual Misconduct Policy and the disciplinary proceedings that Oberlin College has initiated against Plaintiff.
The Judge did not agree, and on April 7, 2020, entered an Order (pdf.) dismissing the due process claims on the merits, and the remaining claims without prejudice (meaning they can be brought later) because they were premature.
In the Order, the court recited what had happened at an April 2 telephonic oral argument and the court’s decision:
In response to the Court’s questions, Counsel for Oberlin stated that the investigation is ongoing and has in fact been hampered by the COVID 19 pandemic since there are no students on campus at this time. Furthermore, the university has not yet determined whether there will be a hearing when the investigation is concluded. Oberlin’s counsel stated that if the university decides to hold a hearing, the hearing can be held via videoconferencing if not in person, and the university will direct both the complainant and John Doe to appear. The Court observed that while Oberlin may direct both complainant and John Doe to appear at the hearing, Oberlin cannot compel their appearances; the Court noted, however, that adverse inferences may be drawn from such absences.
With respect to the procedural due process claim, the Court rejected John Doe’s argument that Oberlin is a state actor based on its receipt of state and federal funding, and ruled that the due process claim does not apply because Oberlin College is a private university and not a state actor. Thus, the procedural due process claim is dismissed on the merits.
With regard to the Title IX claims, the Court ruled that they are premature because no hearing has been scheduled. Consequently, the Title IX claims are dismissed without prejudice.
With respect to the breach of contract claim, John Doe contended that all parties had previously agreed to handle this situation via informal resolution and that changing the agreed resolution from an informal to a formal format by the university constituted a breach of that agreement. The Court ruled that the breach of contract claim was premature. The Court also determined that John Doe’s argument that the College’s handling of this matter was negligent was also premature. In sum, the Court dismissed all state law claims without prejudice as premature.
Based on the foregoing, the Court DENIES the Motions for TRO and Reconsideration for the reasons discussed above. Doc ##: 1-2, 4. The Court dismisses the federal procedural due process claim on the merits. All other state and federal claims are dismissed without prejudice as premature.
John Doe No. has filed a Notice of Appeal (pdf.) to the Sixth Circuit Court of Appeals.
Betsy DeVos to the Rescue?
It’s not clear what happens now. Requests for comment to counsel for the respective parties have not been returned as of this writing.
We don’t have an opposition filing from the defendants, and their counsel did not respond to a request for comment on the case, the dismissal and/or the appeal. So we don’t know their side of the story.
But the picture painted in the pleadings of a nightmare administrative process in which men are fed into a woke meat grinder mirror hundreds of cases at various universities and colleges, as well as the allegations in the suit by John Doe No. 1.
The campus kangaroo court system in which due process rights are cast aside has prompted action by U.S. Secretary of Education Betsy DeVos, who recently rolled out new regulations meant to provide balance for the John Does and Jane Roes on campus. How those new regulations apply to this case, if at all, remains to be seen.
***End of Professor Jacobson’s Remarks***
We end with the Looney Tunes cartoon signature screen from a kinder, more tolerant, and liberal age. In this signature screen Porky Pig looks like he is being an exhibitionist. No one has convened a kangaroo court to deal with Porky’s deviant behavior.
Two readers of the above legal analysis posted this comment: