Wednesday, December 17, 2014
The New Yorker: The Trouble With Teaching Rape Law, by Jeanne Suk (Harvard):
I magine a medical student who is training to be a surgeon but who fears that he’ll become distressed if he sees or handles blood. What should his instructors do? Criminal-law teachers face a similar question with law students who are afraid to study rape law.
Thirty years ago, their reluctance would not have posed a problem. Until the mid-nineteen-eighties, rape law was not taught in law schools, because it wasn’t considered important or suited to the rational pedagogy of law-school classrooms. The victims of rape, most often women, were seen as emotionally involved witnesses, making it difficult to ascertain what really happened in a private encounter. This skepticism toward the victim was reflected in the traditional law of rape, which required a woman to “resist to the utmost” the physical force used to make her have intercourse. Trials often included inquiries into a woman’s sexual history, because of the notion that a woman who wasn’t virginal must have been complicit in any sex that occurred. Hard-fought feminist reforms attacked the sexism in rape law, and eventually the topic became a major part of most law schools’ mandatory criminal-law course. Today, nobody doubts its importance to law and society.
But my experience at Harvard over the past couple of years tells me that the environment for teaching rape law and other subjects involving gender and violence is changing. Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor. Student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class sessions that focus on the law of sexual violence, and which might therefore be traumatic. These organizations also ask criminal-law teachers to warn their classes that the rape-law unit might “trigger” traumatic memories. Individual students often ask teachers not to include the law of rape on exams for fear that the material would cause them to perform less well. One teacher I know was recently asked by a student not to use the word “violate” in class—as in “Does this conduct violate the law?”—because the word was triggering. Some students have even suggested that rape law should not be taught because of its potential to cause distress. ...
Now more than ever, it is critical that law students develop the ability to engage productively and analytically in conversations about sexual assault. Instead, though, many students and teachers appear to be absorbing a cultural signal that real and challenging discussion of sexual misconduct is too risky to undertake—and that the risk is of a traumatic injury analogous to sexual assault itself. This is, to say the least, a perverse and unintended side effect of the intense public attention given to sexual violence in recent years. If the topic of sexual assault were to leave the law-school classroom, it would be a tremendous loss—above all to victims of sexual assault.