Like many feminists in the United States — particularly those of us with any connection to higher education — I’ve been transfixed recently by the civil case resulting from the alleged gang rape of a Cornell University student (dubbed Jane Doe) in 2024.  There are many disturbing aspects of this case that I won’t rehearse here, not least because it’s impossible to do so without delving into a thicket of legal, ethical, and cultural questions.  Discussions have mostly centered on the thorny issue of consent, but I’ve been struck by the invocation of the tort law concept of a “duty of care” — the idea that someone should take reasonable care to avoid causing foreseeable harm.  

One angry alumnus, explaining his decision to withdraw financial support from Cornell, accused the university president of “failing in your fundamental duty of care.” A Slate podcast titled “What Cornell Says about ‘Duty of Care’” focused principally on a more vernacular notion of whether we were cultivating what care ethicists describe as a sense of interdependence and mutual responsibility.  On another Slate podcast (clearly, I need to diversify my listening habits), Political Gabfest host David Plotz lamented about the fraternity members, “They’re not thinking about this person to whom they owe a duty of care, who’s a guest in the place they live.”  Legal commentator Emily Bazelon picked up the idea, describing it not in the tortious sense but rather in the care ethics sense.  “What was really missing here was exactly that,” she said about the duty of care.  “Some sense of community, of being a student together at a university who had some sense of each other’s humanity.”  I am interested in the ways that this public conversation invokes legal language to name a moral failure the law barely recognizes.  

I’ve hesitated to write about this case at all.  I was among the 88 faculty who signed the “We are listening” ad after what turned out to be false accusations of gang rape at a Duke lacrosse party in 2006.  The ad centered on the responses among students, staff, and community members who recalled their own experiences of racism and sexism at Duke, but it was widely taken as the faculty’s rush to judgment.  A Brooklyn College history professor industriously produced a blog about the case, particularly vilifying faculty who signed the ad.  The evidence in the Cornell case appears to be considerably more substantial than in the Duke case, but let’s just say that I’m approaching this matter with an abundance of caution.  So, I will leave it to the lawyers to adjudicate whether the Cornell case meets the duty-of-care standard under New York State case law.  (If the allegations hold, one of the fraternity brothers — who was registered as the “event monitor” for the party where the incident occurred and allegedly sent a Snapchat message to his fraternity brothers advertising “free pussy” — offers a textbook case of failing that duty.)  Instead, I want to ask what care studies might bring to our consideration of this case and what questions this case raises for care studies.

The legal and ethical questions are not entirely divorced.  In her exploration of feminist theory and tort law, Leslie Bender points to feminist care ethics, particularly the work of Nel Noddings and Carol Gilligan, to support her critique of legal universalism in the duty of care.  “Through a feminist focus on caring, context, and interconnectedness,” she argues, “we can move beyond measuring appropriate behavior by algebraic formulas to assessing behavior by its promotion of human safety and welfare” (32).  Much like other feminist critics, she rejects the idea of a decontextualized “reasonable” actor at the heart of the duty of care.

More familiar to readers of Care Talk, I suspect, will be the four elements that Joan Tronto outlined in Moral Boundaries:  caring about (recognizing a need for care), taking care of (addressing that need), care-giving (providing care well), and care-receiving (attending to the experiences of care recipients).  In Caring Democracy, she adds a fifth element — “caring with” or the need for collective responsibility and solidarity — that is arguably even more germane in this case.  

Applying this care-ethics approach to the Cornell case points to the obvious failings in this instance, although the reasons for those failings are less evident.  Cornell itself seemed to follow the first two phases of Tronto’s model, seeing the need for care and establishing a protocol (the “event monitor”) to provide it.  Things get pretty dicey from there:  the event monitor seems not to have provided competent care, and nobody apparently checked on whether Jane Doe received the care she needed.  When the alleged “free pussy” Snapchat went out to a fifty-member group chat, the question of collective responsibility became more central. Despite the fact that this is a generation of students that came of age amid the #MeToo movement and the George Floyd protests — counselled repeatedly on the importance of consent, the nature of power dynamics, and the ethics of being an “upstander” rather than a bystander — collective responsibility seems to have been absent.  One fraternity brother who apparently received the Snapchat claimed that he went to the room just to make sure that everything was “normal” but then apparently responded affirmatively to another fraternity member’s text asking, “Shop still open?”  

Tracing the failure this way exposes the inextricability of “good” and “bad” care — the imbrication of attention and nurturing on the one hand and policing and surveillance on the other. Cornell’s version of taking care was regulatory: registration paperwork, party rules, a designated monitor. Attending and policing merge in the figure of the event monitor, and the obvious remedies (more oversight, stricter rules, perhaps abolishing Greek life altogether) lean toward even more policing. Universities have a history of wrestling with this issue. Under in loco parentis, colleges “cared” for students, and especially women students, through curfews, dress codes, and parietal rules, a regime students challenged in the 1960s and ’70s, leading to the dismantling of the idea that universities had a special, custodial duty of care for their students. The limited legal duty courts recognize today results partly from that victory: once students became adults rather than wards, colleges were no longer their guardians. The question the Cornell case poses is whether institutions under this regime can attend without surveilling.

None of this is an argument against sexual adventure. Sex-positive feminists have long insisted that people can explore their fantasies, including ones that look transgressive from the outside, without inviting violence. But the communities most practiced at that kind of exploration have built it on precisely the practices that map onto care ethics:  desires and limits negotiated in advance, partners sober enough to read one another, continual check-ins, the freedom to stop at any point, and what kink communities call “aftercare.” Intoxication doesn’t make someone’s desires unknowable so much as it makes attentiveness more necessary. According to the lawsuit, that attentiveness was missing. A message advertising “free pussy” to a large group chat is not an invitation to share in anyone’s fantasy. It is the opposite of asking what she wanted.

And there are challenging questions beyond these immediate issues.  If a largely patriarchal culture trains young women to measure their value through men’s sexual desire for them, where does that fit into care ethics and a duty of care?  I’m among those who celebrate sex-positive feminism, but I’m still haunted by a piece that ran in Rolling Stone amid the Duke lacrosse scandal that explored how much of female students’ self-esteem was determined by the sexual desires of a small group of men.  Tronto’s notion of collective responsibility pertains not only to discrete communities of care but also to the larger structural and cultural factors that define possibilities and imaginaries of care.

The other troubling matter that the Cornell case highlights is one that often arises in our seminars focused on research in care studies:  how do we describe the boundaries around our communities of care?  Who gets included, and who is left on the outside looking in?  The communities might be determined by citizenship or membership in labor unions, religious organizations, or mutual-aid societies.  Or, for that matter, fraternities or universities, which serve as examples of the kind of parochial, inward-looking communities of care that Tronto warns us about.  The problem is not simply the exclusions from a community of care — that care for Duke is not the same as care for the surrounding city of Durham, for example — but also that defending a community of care often justifies ignoring the less powerful within it.  It would come as no surprise to Leslie Bender that, even among privileged actors at an elite institution, power structures shape the duty of care.

That we keep turning to legal language and concepts such as consent and duty of care to do the work of ethics underscores how difficult it is to disentangle care from control, since law is, ultimately, an instrument of control. Commentators invoke torts when calling for people to pay attention to those in need. Universities turn to policing to mitigate risk.  Each new scandal renews calls for more rules. The civil case may eventually establish legal liability, but it cannot teach anyone to notice the power dynamics in the room, to attend to those who are guests in our home, and to ask what they need.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. Photo by Thayne Tuason.