The Trouble with Teaching Rape
December 18, 2014 8:27 PM   Subscribe

"Imagine 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." The author worries about "a growing rape exceptionalism, which allows fears of inflicting or re-inflicting trauma to justify foregoing usual procedures and practices of truth-seeking."
posted by anewnadir (57 comments total) 14 users marked this as a favorite
 
Interesting piece. In my experience, it is not the actual black-letter law about rape that is the problem, it is the sometimes-cavalier, often dispassionate opinions of classmates, coupled with the Socratic method of required participation in discussion that make rape a difficult and emotionally-fraught topic for a law school classroom.

I do think that it is terrible unfortunate, particularly for students studying to be criminal lawyers, to be unexposed to difficult legal discussions involving rape, especially because those students who intend to practice criminal defense will almost certainly be required in their professional careers to attack the credibility of sexual assault and rape victims.

That being said, the vast majority of law students will not go on to practice criminal law, a required 1L course, and will never grapple with these tough issues in their legal careers. In that sense, the medical student analogy is way off -- for those individuals who have had traumatic experiences with sexual assault, I frankly don't see much of a problem with them opting out of discussions about the nuances of whether something classifies as rape legally, when their intention is to go on to practice contracts or whatever.

Further, this:

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.

is a hugely valid point, and a concern I wish more law professors would take seriously. In my opinion, students should not be required to read, process, and respond to (oftentimes) grotesque hypotheticals designed to test students' knowledge of rape law in a highly-stressful time-crunch situation that does not allow time for emotional processing, and upon which the students' entire grade for the subject is based. The final exam in my criminal law class, for example, included a lengthy hypothetical stringing together a prostitution ring, statutory rape and child sexual assault, and substance use.

Which reminds me of this -- UCLA professor apologizes for including exam question about ongoing events in ferguson. Obviously a more extreme case, but I do think similarities can be drawn.
posted by likeatoaster at 8:50 PM on December 18, 2014 [24 favorites]


Some of my relatives, a married couple, used to work as over-the-road truckers. They had a sleeper cab so they could tag off during those long drives. Then one day there was an accident, no fault of theirs, but the small car's passengers… parts… splattered across the windshield. They stopped trucking. The image was just stuck in their heads.

I expect they wouldn't be able to stomach surgical training, either, so medical school is probably out—as in this example. But what if that wasn't an uncommon experience? By the numbers, the proportion of incoming college freshmen who have been raped or sexually assaulted is disturbingly high. By the time they reach law school the numbers will be higher and more disturbing. Do we just say "no-one with those experiences get to have law degrees?" In a way it is unfair that we ask colleges to teach against this level of PTSD among the student body, but what's the alternative?

Many of my most difficult conversations on sensitive subjects took place in college, in the best classes. And we don't call those conversations "difficult" for no reason: it requires a good deal of work on the part of the students and the professor to establish the ground rules and, in the case of the professor, to moderate the conversation effectively.

This article bugs me. Professor Suk seems to me to be taking the coward's way out: after admitting that rape law hadn't been taught in law schools until a few decades ago, and facing students' desire to revise those ground rules and re-establish the conversations, they retreat into "kids these days" hand-wringing; as if the two options for teaching rape law are the existing "suck it up, buttercup" method or not at all.

The overarching theme of this article is that Professor Suk is hearing more and more about students finding the classroom a "potentially traumatic environment" and assuming what's new is that experience, not the willingness to speak up. "Oh gosh oh gee, what shrinking violets for students we've had in the past couple of years. I'll minimize their experience by putting scare quotes around 'trigger'." Like I said: Suk is unwilling to do the hard work of moderating the classroom in a way that's respectful to all the students, and instead would rather speak out about the dangers of the "growing rape exceptionalism".
posted by traveler_ at 8:59 PM on December 18, 2014 [17 favorites]


traveler_: "Professor Suk seems to me to be taking the coward's way out"
Interesting way of putting it, given the object of her tirade.
posted by anewnadir at 9:04 PM on December 18, 2014


Agree with basically all of likeatoaster's comment. I had crim law first semester of my 1L year, in a huge lecture, with an aggressively assholic tenured male professor who a) had married a former student and b) fairly openly carried on affairs with 3Ls, who seemed to take squicky, leering delight in outlining all the most salacious details of the rape cases, and whenever someone looked uncomfortable or objected, he said, "If you're going to be lawyers, you have to learn how to divorce your emotions from the law! I'm just teaching you to think like a lawyer!" and if women continued objecting, he'd say, "If you can't remove your emotional reaction, maybe you're not well-suited to the law!" He started this in the second week of class and circled back around to rape-related cases in just about every unit. It turns out you can illustrate just about every principle of criminal law with a rape case if you try hard enough! It was gross.

He didn't do this with highly emotional or controversial murder cases, or hate crimes, or anything else. In fact he emphasized the need to understand the politics of power when talking about race and crime, and not to ignore a history of oppression. But rape? That was apparently fodder for his spank bank and a way to drive women out of law.

Unsurprisingly, I learned basically nothing in that class. Can't even imagine what it was like for students -- male or female -- with a history of sexual assault.

I often wonder if parts of criminal law ought to be taught during 2L. Some areas seemed too complex or too quickly-evolving for a large lecture 1L classroom with students just beginning to build a mental framework of the law and understand the Socratic method. I think some of the trauma of rape law-qua-rape law would be lessened by having students who weren't brand new to the school, their classmates, the teaching method, etc., who have a little more self-confidence and comfort in their surroundings. I would have been less bothered by this guy -- and a lot more comfortable speaking out -- if I hadn't been a first-semester student. I dunno, I don't have a good answer, and obviously my thoughts are very colored by the horrible professor I had.
posted by Eyebrows McGee at 9:20 PM on December 18, 2014 [18 favorites]


The crim law professor I had was a good one. He wanted to stress that rape laws and courtroom procedures were troubling in the past, and are still troubling today. He wanted a conversation that would emphasize the difficulty of rape victims to speak up and why the process was so harsh to them.

The conversation from my fellow students was awful. Awful. I don't think any of the women spoke up. It was a series of men angrily pushing back and raising the specter of false accusation. The class dynamic was already biased towards loudmouths with obnoxious opinions dominating the discussion - we called them "gunners" because they rushed to participate, loved to hear themselves speak, and they rarely ever considered issues with anything like nuance - but what happened in those two lectures was deeply unsettling on another level entirely. Our professor even had to send out an email saying he was not happy with how the discussion went, and that students needed to be more respectful with such a fraught topic. That never happens in law school, so you can get a sense of how fucked it all was.

I believe that the subject matter can be handled in a sensitive and non-triggering way, and is an important one to teach. But the absolute biggest obstacle you have is your fellow classmates. I would suggest that the socratic method is not productive and educational in every single topic, and this is one of those areas where it doesn't work as intended. Because rape culture is just that pervasive.
posted by naju at 9:49 PM on December 18, 2014 [9 favorites]


Surely, there are people out there who are just as traumatized about murder or any of a number of other topics. Are their issues given the same kind of weight? Should they be? If so, how could they all be accommodated? If not, then it seems like we actually are talking about a kind of exceptionalism.

Like I said: Suk is unwilling to do the hard work of moderating the classroom in a way that's respectful to all the students...

That's an unfair assumption. Is it not possible that she does all that and still objects to the cultural shift that she describes? I see no reason to jump to conclusions about the kind of classroom experience that she provides.

Interesting way of putting it, given the object of her tirade.

I did not hear a tirade. People are discussing Suk as though she must be callous, insensitive and cruel. But I don't hear anyone mentioning the real thesis of this article. She starts by saying that she personally observed how bringing rape into the discussion in law schools was a win for feminists, and women in general.

Now, she's worried that our inclination to avoid discussing topics that some people find intensely uncomfortable, we may lose what we gained. In the long run, she believes that this could actually hurt the people whom we are trying to protect. Whether or not you agree with her, this seems like a fundamentally feminist position. That's what this is about.

The most productive response I'm hearing here is that she (or law school) just needs to teach it differently. I think that's easy to say, but it misses the full scope. Maybe naju had a bad experience with his classmates, so ditch the Socratic method...but in Eyebrows McGee's case, it was the professor who was bad, and we just need to move rape to second year law.

The problem is that you guys are just diagnosing the problems with how you were taught. If rape law is a topic in classes, sometimes you're going to have asshole professors, and sometimes you will have shitty classmates.

I'm not saying that we can't do anything to protect people from these kinds of experiences. Not at all! We really should do whatever we reasonably can. I think it's important to let students know, before they enter a course, what kind of troubling material they might be exposed to. Not just for rape.

But I am saying that it's really not simple to provide a quality education and provide for everyone's mental well-being at the same time. This is especially the case when you're looking at it in terms of institutions (which actually have to form and implement policies) instead of individual classrooms; it's a struggle to achieve just one of those two goals.

I'm not an expert in education, so I'd be interested in hearing what an educator might have to say. So far, it's been all students up in here.
posted by Edgewise at 10:26 PM on December 18, 2014 [6 favorites]


Surely, there are people out there who are just as traumatized about murder or any of a number of other topics.

Murder is much, much rarer than rape and while other forms of crime can also be traumatising, they don't carry the stigma and history of rape, so bringing them up is a bit of a red herring.

Now, she's worried that our inclination to avoid discussing topics that some people find intensely uncomfortable, we may lose what we gained.

All she has as evidence for this trend is anecdata though and it's presented in the same sort of helicopterparentingmillennialsfeelingskidsthesedays tone as any given Slate article about parenting.

What isn't established is 1) are there actually a great many people wanting to opt out of rape law discussions because they feel triggered and 2) if so, is this actually a problem, or more a signal that the way these cases are discussed needs changing.

Also, there's of course always the question that even if 1 and 2 are true, they may not be new problems but rather coming to the fore now that rape (culture) is becoming less of a taboo subject to discuss and women especially feel less need to confirm to patriarchal notions of how to talk about it.
posted by MartinWisse at 10:49 PM on December 18, 2014 [5 favorites]


This opposition to trigger warnings is just the latest backlash against totally common-sense steps (reminiscent of "angry feminists") toward a world that is more fair for victims of sexual assault.

I am appalled that this author seems unaware of why these requests are being made, in a world where (at least) 1 in 5 women have experienced sexual abuse. (In the last journal article I read it was 1 in 3 college-bound women.) "What has made everyone so newly nervous about discussing sexual-assault law in the classroom?" An awareness that how survivors feel matters? Making changes in response to that growing awareness? Wanting to be fair to them? Is that so hard?

(At least) one in five women and one in 33 men have been sexually assaulted, and we WANT those people to be able to become attorneys. In the competitive world of grades and clerkships and whatnot, we DON'T want them to have to grapple with PTSD etc. WHILE taking a 24-hour take-home exam in a required first-year course.

It's just common-sense to warn about and not require triggering material. I had to watch Rashomon in class and got no heads up. Did I REALLY have to watch a woman get assaulted multiple times to understand "witnesses perceive circumstances differently?" No. Would a heads-up have been hard to provide? No. So... I would like to see professors get with the program.

The implicit claim that "we don't know what to doooo" seems completely disingenuous. If all of Reddit and Metafilter can get the hang of "NSFW" then I'm certain that law professors can get the hang of "TW: rape" if not also "please approach the instructor to discuss a replacement assignment if exposure to this content would be injurious to you."

The surgeon metaphor is inept. Have 1 in 5 women had close family members murdered in front of them? No. Have 1 in 5 women experienced sexual violence? Yes. Could you could be a doctor without dealing with blood? Probably not. Could one be an attorney without working rape cases? Yes.

In paragraph eight, the professor shifts from talking about the subject of triggering subject matter to defending the accused. That shift to me proves that this isn't about "oh noes we can't educate well" to a broader argument that "anti-rape activists have overstepped." It's irrelevancy signals that this article is less about pedagogy and "how shall we teach?" and more about expressing annoyance, more about backlash.

I'd love to see productive engagement with "what does it look like to provide a legal education that trains future lawyers to address rape with sensitivity while being fair to victims in those courses?" But it has to come with an awareness of the prevalence of assault and a concern for victims.
posted by salvia at 10:51 PM on December 18, 2014 [11 favorites]


(At least) one in five women and one in 33 men have been sexually assaulted...
According to the US Department of Justice, the rate of sexual assaults of women in college is 0.61%, not 20%.
posted by Chocolate Pickle at 11:01 PM on December 18, 2014 [8 favorites]




It's just common-sense to warn about and not require triggering material.

Reading the judgement in any sexual assault case is triggering. Hell, just reading the statutes, with their matter of fact listing of body parts and violations is triggering.

How do you suggest the law of sexual assault is taught without reading the law?
posted by dave99 at 11:12 PM on December 18, 2014 [4 favorites]


ChocolatePickle, you should always read the methodology to avoid this kind of mistake. That's not what the survey's results say. From the methodology section (emphasis mine):
The National Crime Victimization Survey (NCVS) is an annual data collection conducted by the U.S. Census Bureau for the Bureau of Justice Statistic (BJS). The NCVS is a self-report survey in which interviewed persons are asked about the number and characteristics of victimizations experienced during the prior 6 months.
It's also often (always?) educational to read the rest of the paper before quoting one result out of context. This one has an interesting section that describes differences between the NCVS (the source of the number you're quoting) and two other large surveys. A relevant result from the Campus Sexual Assault survey, which included questions with a different timeframe, collected using different methods:
The 2007 CSA findings suggested that 14% of females ages 18 to 25 who were enrolled in two colleges and surveyed in the United States had experienced a completed sexual assault since entering college
This is only on page 2. There is discussion about how differences in methodologies might have led to the different reported rates--with the study you're quoting having the lower numbers. Regardless, even if you believe its numbers are the most accurate (which is not something argued for by the paper's authors), it does not say that "the rate of sexual assaults of women in college is 0.61%." This is a gross misinterpretation.
posted by Kutsuwamushi at 11:30 PM on December 18, 2014 [33 favorites]


Wow, thanks salvia. That's pretty much point-for-point what I was going to say in followup. So I'll just re-emphasize some: if we are talking about a kind of exceptionalism, it's the inescapable exceptionalism of the numbers. There are just too many students who have been victims of these crimes. And secondly, partway through the article Suk switches from the classroom to a broader complaint about sexual harassment policy and the Rolling Stone article, I think betraying the underlying motive.

That's an unfair assumption.

I don't think so. The process I'm describing comes from a place of mutual respect but this article is itself disrespectful to her students. The best she could have been providing would be grudging compliance, and when that grudge reached its limit, this article resulted.

So far, it's been all students up in here.

I think I should say at this point that I'm a grad student, procrastinating on his thesis right now, and have taught several college classes. I agree with you that this really is not simple at all, in fact that's why I described it as "hard work". And it's easier for me to get up on my high horse and say it must be done because I teach in Computer Science where, often, it doesn't even come up. But still, it must be done.

According to the US Department of Justice, the rate of sexual assaults of women in college is 0.61%, not 20%.

If it's a rate it can't be expressed as a percentage, it needs a time component. Is that per-year, per-semester, per-college-career, or what? Also, does that count attempted assaults? Unreported incidents? No, does it really count unreported incidents? These are rhetorical questions because those answers are well-known, and in fact 20% for women per-college-career, attempts plus actual assaults, is the more typical figure backed by several studies using multiple methods.

But that ties straight in with the Emily Yoffe Slate article Bwithh just linked. I could give a whole extra multi-paragraph rant on the problems with that article, moreso because so many of its flaws are factual and I'm much more comfortable digging in that ground. But for now, just notice what seems like this pattern of respectable platforms like the New Yorker and Slate giving voices to this common complaint: we've gone too far on fighting rape, we've "overcorrected", now we have to worry about "trigger warnings", but if they can't stand up to a little bullying how can they possibly be lawyers, and what if the statistics are all wrong and it's really not a big problem?

I don't know if it's contrarianism-as-clickbait or intentional, reactionary antifeminism. Either way is bothersome.
posted by traveler_ at 11:54 PM on December 18, 2014 [7 favorites]


But that ties straight in with the Emily Yoffe Slate article Bwithh just linked. I could give a whole extra multi-paragraph rant on the problems with that article,

Which are all summed up by noting that this is an Emily Yoffe Slate article.
posted by MartinWisse at 12:04 AM on December 19, 2014 [5 favorites]


0.61% over six months is rather similar to 5% over four years. That study could just as easily be interpreted as confirming the one-in-twenty figure.
posted by topynate at 12:06 AM on December 19, 2014 [1 favorite]


Sorry, my mistake - mixed up percentages and odds. One in twenty isn't 20%...
posted by topynate at 12:12 AM on December 19, 2014 [1 favorite]


Law and medicine are complicated professions. We expect practitioners to have good general knowledge, but then to have great depth in a specific topic. Your ophthalmologist probably can't do a heart bypass, but could explain the basics of the human digestive system or temporarily set a broken arm. Similarly, you could study criminal law in law school and then go on to a long career in securities law, never seeing the inside of a courtroom again. But if your friend's son gets a speeding ticket, you can probably still advise about how to fight it in court in a general manner.

We have a clash of purposes here. We want rape and sexual assault laws to be on the books, and we want lawyers to be aware of those laws and cases as part of their required general knowledge. By most accounts, rape and sexual assault are pervasive enough in our culture that they need to be included on the overall syllabus for lawyers-in-training.

We are also seeing a growing movement in the culture towards a less callous discussion of sensitive topics. In general, this is a laudable goal. But it is a goal that does not mesh well with the requirement that we educate our lawyers on the legal aspects of these sensitive topics.

Can we reach some sort of compromise? Are we creating less effective lawyers by allowing some to graduate without this potentially critical general knowledge? Is it fair to require someone to effectively re-live deeply traumatizing experiences as part of job training? Is it fair to require professors to prepare alternate materials for this topic (and will it end with only this topic)? Is it fair to allow some students to pass on an otherwise required topic? Maybe these questions should be considered as part of the choice one makes of law school: schools can advertise whether they offer alternatives or not. At the very least, for future incoming classes, there should be a way that those who have been victimized can find out what school policy might be on this topic.

I don't think one side or the other is the ultimate solution. We don't require all doctors to become trauma surgeons. We don't require all psychiatrists to become abuse counselors. But most doctors will go through a rotation at the ER. Many psychiatrists will take classes on the effects of abuse. It's a good thing that we have many law schools, because I think that we will need to have a variety of options to meet the variety of valid needs we have as individuals.
posted by aureliobuendia at 12:50 AM on December 19, 2014 [3 favorites]


Murder is much, much rarer than rape and while other forms of crime can also be traumatising, they don't carry the stigma and history of rape, so bringing them up is a bit of a red herring.

It's not a red herring and I'm not talking particularly about crimes, much less exclusively murder. I'm talking about all the kinds of horrible shit that people can go through. Some of them are stigmatized, too. My point was not to compare traumas - that is pointless and unpleasant. My point is that there are many examples of terrible things.

It is possible to speak respectfully on all these topics, and I think we should demand and expect content warnings and healthy conversations for difficult topics. That will not always happen, and we should endeavor to hold people accountable when they fall short. I don't know exactly how that is to be done, and perhaps system-wide changes are called for. I really don't know.

Where my opinion overlaps with Suk is that these topics should not be removed from curricula. She's saying that having these conversations are too important, and I believe that she has a point. She makes the case that discussing the topic has been part of improving the actual legal system, and continues to preserve these advancements, and I find that to be persuasive.
posted by Edgewise at 1:01 AM on December 19, 2014 [5 favorites]


We want rape and sexual assault laws to be on the books, and we want lawyers to be aware of those laws and cases as part of their required general knowledge. By most accounts, rape and sexual assault are pervasive enough in our culture that they need to be included on the overall syllabus for lawyers-in-training.

if men can't handle professional and safe-for-all-students discussion, maybe there could be accommodations made, like special sections set aside just for them.
posted by thug unicorn at 1:05 AM on December 19, 2014 [16 favorites]


Similarly, you could study criminal law in law school and then go on to a long career in securities law, never seeing the inside of a courtroom again. But if your friend's son gets a speeding ticket, you can probably still advise about how to fight it in court in a general manner.

I think you're overstating the degree of general knowledge most lawyers have.
posted by leotrotsky at 3:24 AM on December 19, 2014 [8 favorites]


My professor handled this in what I think is the best way in light of the growing concerns for an uncomfortable subject-matter: teach sexual assault over one or two class periods, requiring students to read the cases, giving it just as much discussion as other major crimes, but announcing on the last day of class that it won't appear on the exam.
posted by resurrexit at 4:25 AM on December 19, 2014 [3 favorites]


Our Crim Law professor was a good one, and she handled rape law well. When we began the section on sex crimes, she said something like, "okay, so now we're going to discuss sex crimes. This is a sensitive topic, so I expect everyone to handle this in a mature fashion. We'll all power through it. As I'm sure you all know, sexual assault is unfortunately fairly common - something like 1 out of 4 women are survivors of some sort of attempted sexual assault. We have to cover this material in full, and we will. I'll do my best to make sure that everybody is comfortable, and I expect the same from you. This hasn't ever really been a problem in the past - well, maybe once before, from one person - but it's worth giving this proviso every time."

It's a good model proviso, with a structure appropriate for most issues - clear, makes its case, matter-of-fact, peer-to-peer, doesn't preemptively accuse anyone of anything, rhetorically separates the allegedly single past violator from anyone else past or present, etc.
posted by Sticherbeast at 4:29 AM on December 19, 2014 [13 favorites]


I will say, however, as a tangent, that our final was a little odd in that the main essay fact pattern incorporated both cutesy, zany names and horrific murder, rape, etc. "Oh, hey, I wonder what Felix Featherstone and Sally Mallywell are up to. OH GOD WHAT WHY"
posted by Sticherbeast at 4:33 AM on December 19, 2014 [1 favorite]


aureliobuendia: "Are we creating less effective lawyers by allowing some to graduate without this potentially critical general knowledge?"

It's laughable to assert that, especially at Harvard, students are learning actual law in 1L courses. They're not. They're learning the argue and to "think like lawyers." (The more prestigious the school, the more theoretical the course content.)

Actual black-letter law is learned in a panicked 8-week cram session from the fine monopolists at BAR-BRI while reviewing for the bar exam.
posted by Eyebrows McGee at 5:18 AM on December 19, 2014 [9 favorites]


It was a while ago, but I don't remember my 1L crim law class even discussing the issue of rape. If it matters: this was at a top 5 school; my professor was male. The purpose of a criminal law class is not to teach you the actual penal code in a particular state (that's what BarBri is for after you graduate). It doesn't matter what "laws are on the books" - you're there to learn about theories of punishment, development of the penal system, the difference between the criminal act and mens rea, affirmative defenses, etc. We spent most of the course on murder/manslaughter, inchoate crimes, and defenses. Maybe we had a fraction of a single class where we discussed statutory rape, in the context of crimes for which intent/belief is irrelevant. It is completely possible to teach the basic principles of criminal law without discussing rape.

I think sexual assault would be better handled in an upper-level course. The issue of witness reliability is more relevant to evidence than to crim law. In depth discussion of the more complex issues involved in sexual assault cases would be more appropriate in an elective seminar with a small class size.

Law school isn't about learning the law, it's about learning legal theory and legal reasoning. Other than civ pro, tax, and bankruptcy, I can't remember a class that studied actual laws -- most dealt with historical development of the law and model statutes.
posted by melissasaurus at 7:06 AM on December 19, 2014 [7 favorites]


Yeah I was lucky that my main crim prof (who also taught me criminal procedure) is an outspoken feminist who is also kind of intimidating (both professionally and, well, personally). We talked about sexual assault as any other crime - I believe she proffered that it wouldn't be on the exam because there are better ways to test our understanding of basic crim concepts - but as likeatoaster says, it was less likely to be the prof than the students, in our case. And I remember our class as willing to make jokes, which especially in crim is a much-needed release valve (try reading about sleepcrime/non-insane automatism for a week. It's silly! And real!), but the message was clear on those cases - jokes would have to be very careful and preferably just not there.

Although honestly as I think about it, we didn't talk about sexual assault that much in the 1L crim class. What's to talk about? Like we did it to some degree to talk about the "dialogue theory" between courts and Parliament, especially around some relatively precise provisions (probably this case), and we definitely talked about an incest/sexual interference case, and mayyyybe some stuff on "mistaken belief in consent", but your bog-standard sexual assault case is not that interesting from a "teaching crim law" perspective. Really, we talked about it more in our (required) 2L class on evidence, because of course there are a lot of evidentiary issues that come up (barring discussion of victims' sexual past, access to their medical/psychological records, issues of revictimization at trial, etc.

On preview, yeah echoing milissasaurus.
posted by Lemurrhea at 7:13 AM on December 19, 2014


The Atlantic had an article on the same issue today. The future of law school is a regular topic in my office (not for the least reason that we partner with local law schools all the time), largely because they are too large, too expensive, and the education is simply not practical enough.

I've not read this piece, but the Atlantic piece makes some very salient points about the emotional toll of the practice of law, even corporate law. I don't know the solution. Sensitivity to personal trauma is necessary if the world is to become a better place, but it's substantially more complicated than "don't use rape hypotheticals in crimpro".
posted by crush-onastick at 7:13 AM on December 19, 2014 [1 favorite]


My crim law professor did what many others have shared here: rape/sexual assault was confined to about two classes, it was announced beforehand, and while there was required reading in the case books, she announced that absences were understandable/fine for those days. Further, I think she threw the socratic method out the window and mostly lectured on the topic. Finally, she made explicit that rape/sexual assault would not be included in the final exam hypos.
I think these are reasonable steps that attempt (and go pretty far) to balance all of the interests at play.
As others have mentioned, Crim Law is not where you learn all the laws-it's where you learn the elements of a crime and defenses that exist. My professor did this through the lens of homicide. All of the hypos involved someone dying at the hands of someone else, and our challenge was to determine whether it was criminal at all, and then what type (malice murder, second degree murder, felony murder, etc etc-and while states use different labels and categories for these sorts of crimes, it is possible to generally discuss them)-and what elements--mens rea, actus rea, general intent, specific intent, etc--must be met to say the homicide was that crime.
[As an aside, I do not think I'm a particularly sensitive person-I don't generally have a problem with violent/gory movies, etc-but I definitely remember wishing crim law was over so I didn't have to read anymore cases about people being murdered. Further, throughout law school, I was bothered by the idea that I spent all my time reading about the worst day/event of most people's lives in order to be able to highlight the holding andwrite a flashcard. I understand why I had to do it, and these cases are all in the public record, of course-it just felt so perfunctory, so lacking in respect of the experiences of of these victims and their families. I wished for there to exist some sort of ceremony akin to those conducted at many medical schools that honor the lives of actual people who made it possible for students to study anatomy hands on.]
Now, if I had taken an upper-division class called "The Law of Rape", I would expect the class would be all-rape law-all-the-time, that students would be required to be conversant in the cases, etc, and hypotheticals involving sexual assault would be on the final exam. But since it was an elective called "The Law of Rape", I could make the choice to take the class or not. I would strenuously object to a student requesting any of these kinds of accommodations for such an elective course. To be effective counsel on either side of a sexual assault trial, you're going to need to be able to deal with the emotional aspects.
But Crim Law is essentially a survey course-and in an attempt to balance competing interests, it is not unreasonable to use any of the techniques people have mentioned above.
posted by atomicstone at 7:34 AM on December 19, 2014 [3 favorites]


aureliobuendia: "Are we creating less effective lawyers by allowing some to graduate without this potentially critical general knowledge?"

Eyebrows McGee "It's laughable to assert that, especially at Harvard, students are learning actual law in 1L courses. They're not. They're learning the argue and to 'think like lawyers.' (The more prestigious the school, the more theoretical the course content.)"

Actual black-letter law is learned in a panicked 8-week cram session from the fine monopolists at BAR-BRI while reviewing for the bar exam.


Well, IANAL, and IGFYCTYA (I gather from your comments that you are), so I'll defer to your knowledge of the realities. I would point out that I wasn't precisely asserting that students are learning "actual law" in 1L. I was asking if, over the three-year law school curriculum, a lawyer loses something by not covering this topic, whether it's law, or theory of law as it applies to these matters? I suppose the better converse to ask is: can you be a rather effective lawyer if your law school career covers 99.95% percent of the bog-standard material? I hope that one can deduce where I might stand from the framing of the question.

Put another way: if a lawyer gets a pass on sexual assault and rape in criminal law, what is he or she missing out on? Does discomfort trump the need for a good foundation? Or, since many lawyers are saying that the rape & sexual assault section was a day or two, is it the equivalent of having a bad flu on the days that some other two-day-long topic was covered?
posted by aureliobuendia at 7:50 AM on December 19, 2014


I honestly think Crim was one of the least useful classes I took 1L year, that might be because my professor was the worst I had in law school pedagogically (actually very pleasant and admirable person personally), but it still seemed like making a big deal out of pretty simple ideas. Missing out on half the class wouldn't harm you professionally, even if you went into criminal prosecution/defense, which relies more on understanding of criminal procedure (4th, 5th, 6th and 8th amendment law) and evidence. I think you could pick up just about all the theoretical stuff you need to know for crim law pretty quickly outside of class. Glossing over rape wouldn't be the end of the world, professors already gloss over stuff that isn't interesting to them.
posted by skewed at 8:00 AM on December 19, 2014 [2 favorites]


Put another way: if a lawyer gets a pass on sexual assault and rape in criminal law, what is he or she missing out on?

A little, but not much. For better and for worse, 1L really is more about how to "think like a lawyer", i.e. how to approach your studies, how to research law, how to read fact patterns, how to apply the law to facts, how to express yourself, how to get a bird's-eye-view of a case, etc.

For example, in my Crim Law class, during the section on rape, my principal memory was a case which was a bit of a legal gray area, in a way which highlighted how different the laws were between New York and New Jersey. I also remember discussion of the practical realities of people reporting rape, etc., and I'm pretty sure this was also when we talked about DV, cycles of abuse, integrated DV courts, etc. I also remember that we didn't have time to go into rape shield laws.

But, it's not as if somebody who'd missed that unit would be unable to figure out what sex crime laws are.
posted by Sticherbeast at 8:06 AM on December 19, 2014 [1 favorite]


Thirding Melissasaurus, also went to a well regarded law school, Crim is pretty heavy into theory and (not particularly nuanced or thoughtful) philosophy, illustrated by horrific fact scenarios. You lose little to nothing pedagogically by trimming coverage of rape.
posted by leotrotsky at 8:10 AM on December 19, 2014 [1 favorite]


Put another way, law students learn the law on the job, while doing things. A baby lawyer is never going to approach a subject and say something like, "BUT I DIDN'T LEARN ABOUT THIS IN LAW SCHOOL! OH WHAT SHALL I EVER DO"
posted by Sticherbeast at 8:13 AM on December 19, 2014 [5 favorites]


Are you guys reading the same article I am? It's bringing up the point that, in criminal law classes, there needs to be an emphasis on teaching how to examine and cross-examine victims of alleged rape. Here's a direct quote from the article:

"Instead, I focus on cases that test the limits of the rules, and that fall near the rapidly shifting line separating criminal conduct from legal sex. These cases involve people who previously knew each other and who perhaps even previously had sex. They cover situations in which the meaning of each party’s actions, signals, and desires may have been ambiguous to the other, or misapprehended by one or both sides. We ask questions like: How should consent or non-consent be communicated? Should it matter whether the accused realized that the complainant felt coerced? What information about the accused and the complainant is relevant to whether or not they should be believed? How does social inequality inform how we evaluate whether a particular incident was a crime? I often assign students roles in which they have to argue a side—defense or prosecution—with which they might disagree."

Simply ducking one's head and avoiding these topics are going to have a damaging effect if the future lawyer is involved in a rape trial that is not so clear-cut. How would you cross-examine a rape victim in such a case?

And why all the emphasis on first year law or second year law? The author doesn't mention when this should be taught - just that it needs to be taught at some point.
posted by enamon at 8:19 AM on December 19, 2014 [2 favorites]


in criminal law classes, there needs to be an emphasis on teaching how to examine and cross-examine

No classes offerred at my law school taught this, with respect to any crime (or any civil wrongdoing). Evidence addressed what could be admissible, criminal procedure addressed when/what you could ask the accused and whether they needed a lawyer present. This type of skills-based instruction is not the purpose of law school. You may get it if you participate in a clinic, but, really, skills are learned during summer internships and the first few years of practice, not in law school.

Most lawyers never step foot in a courtroom, many criminal lawyers never examine witnesses under oath. Less than 10% of criminal cases go to trial in the US. Knowing how to examine/cross-examine a witness is actually not a necessary skill for most lawyers.
posted by melissasaurus at 8:26 AM on December 19, 2014 [4 favorites]


"Criminal Law" as a class is more or less definitionally a 1L class. It's the introduction to criminal law, when you're still in the "how to think like a lawyer" phase. It is not a class in which you learn how to (cross-)examine witnesses. If a lawyer ever says, "I don't know how to handle this case, because we didn't cover this topic in 1L year", then shoot them.
posted by Sticherbeast at 8:27 AM on December 19, 2014 [2 favorites]


...and even if you did teach the witness stuff, it'd be more appropriate for a crim pro class.
posted by leotrotsky at 8:31 AM on December 19, 2014 [1 favorite]


Skills are learned during the first few years of practice? So, what you're saying that when cross-examining possible victims of rape you should just wing it and keep doing it until you've got it right? Considering the possible emotional trauma of the issue at hand don't you think it makes sense to have some sort of proper, standardized training before hand?
posted by enamon at 8:32 AM on December 19, 2014


And why all the emphasis on first year law or second year law? The author doesn't mention when this should be taught - just that it needs to be taught at some point.

Because Crim is a mandatory 1L class, and for most law students it's their only exposure to criminal law.
posted by leotrotsky at 8:34 AM on December 19, 2014 [2 favorites]


Skills are learned during the first few years of practice? So, what you're saying that when cross-examining possible victims of rape you should just wing it and keep doing it until you've got it right?

You realize that this situation probably affects <1% of attorneys?
posted by leotrotsky at 8:36 AM on December 19, 2014 [1 favorite]


Skills are learned during the first few years of practice?

Yes.

So, what you're saying that when cross-examining possible victims of rape you should just wing it and keep doing it until you've got it right?

You learn this stuff at internships, externships, clinics, jobs, volunteer work, etc.

Considering the possible emotional trauma of the issue at hand don't you think it makes sense to have some sort of proper, standardized training before hand?

Law school classrooms are categorically not where you acquire this kind of skill set.
posted by Sticherbeast at 8:37 AM on December 19, 2014 [2 favorites]


I don't understand your point. This situation affects all lawyers involved in rape cases.
posted by enamon at 8:37 AM on December 19, 2014


Sticherbeast: So where would one acquire the kind of skillset to properly deal with victims of possible rape? If done wrong, there's a lot of potential there for inflicting further trauma or possible convicting someone innocent of the charge.
posted by enamon at 8:39 AM on December 19, 2014


I have never heard of a newly-admitted attorney arguing a criminal case in court. And, honestly, I'd question whether they're committing an ethical violation by doing so.
posted by melissasaurus at 8:39 AM on December 19, 2014 [1 favorite]


In reading this article, I find myself deeply skeptical.

Several of my college history professors were associated with the school of education--which was good for me & my fellow majors, as many of us were going for teaching credentials. They said, more than once, that we should all be mindful not to envision ourselves teaching high school the way professors teach college, because most college professors would be terrible at any other level...because professors are taught their content, but they never really go to school to learn how to teach.

I'm starting to wonder if these law professors have the same problem. What's the training like for those professors? Lots of classes involve uncomfortable material. Not all of them have this problem. This is not an impossible needle to thread.

Criminal law classes should absolutely include material on rape. If the student can't handle that, they really shouldn't go into criminal law (or any other field that requires such study). However, those classes don't need to slide into hyperbole and insensitivity, and that also seems to be at the heart of all this.
posted by scaryblackdeath at 8:43 AM on December 19, 2014 [1 favorite]


So where would one acquire the kind of skillset to properly deal with victims of possible rape? If done wrong, there's a lot of potential there for inflicting further trauma or possible convicting someone innocent of the charge.

Internships, externships, clinics, jobs, volunteer work, etc. Learn by doing. Yes, there are trial advocacy classes and mock trial and things like that, and those can be nice, but really you would learn by doing.
posted by Sticherbeast at 8:44 AM on December 19, 2014 [2 favorites]


Here's a perspective from another crim professor. What he describes is much closer to my own law school experience than the situation described in the Suk article. The first comment on this one says "Do you think your approach to teaching the subject is different from the one discussed in the article? It could be as simple as that." That seems like a possible explanation.

My crim prof introduced the topic with sensitivity: he asked us to bear in mind during our discussions that some people in the class will have been assaulted, and while it's less likely, it's also possible that someone in the class will have been falsely accused. He allowed people to opt out of the discussions on those days, and used volunteers instead of cold-calling. This was appropriate: we weren't in a courtroom, we were in a learning environment, and the ground rules for facilitating learning are different from the ground rules for courtroom advocacy. In terms of our learning experience, we gained rather than lost because of the sensitivity of this approach.
posted by heisenberg at 8:53 AM on December 19, 2014 [2 favorites]


enamon: "Skills are learned during the first few years of practice? So, what you're saying that when cross-examining possible victims of rape you should just wing it and keep doing it until you've got it right? Considering the possible emotional trauma of the issue at hand don't you think it makes sense to have some sort of proper, standardized training before hand?"

The fact that lawyers in the U.S. graduate with ZERO PRACTICAL SKILLS has been the #1 topic in "the problem with law school today" for the last FORTY YEARS. Lawyers graduate law school NOT KNOWING THE LAW. They learn enough black-letter law to pass the bar exam from privately-run review courses in the three months before the exam. They learn how to actually be lawyers in the first couple years of practice.

If we must extend the (bizarre) med student analogy the article, medical students who have graduated med school and are doctors must still complete a 3-7 year residency before being allowed to practice independently. Typically, lawyers similarly spend the first few years of their career in a sort of supervised apprenticeship.

And this woman is absolutely not teaching "examination and cross-examination" of victims of any crimes, and certainly not in a Harvard 1L class.

(And yeah, as other people noted, a lot of what she brings up is more appropriate for Evidence, which is typically a 2L class, or Crim Pro, which is generally optional.)
posted by Eyebrows McGee at 9:07 AM on December 19, 2014 [8 favorites]


I have never heard of a newly-admitted attorney arguing a criminal case in court. And, honestly, I'd question whether they're committing an ethical violation by doing so.

It happened in DC a few years ago and was just as awful an idea as you'd expect. I don't think he ever got formally sanctioned, but as a layman I'm comfortable calling what he did unethical.
posted by Copronymus at 11:17 AM on December 19, 2014


Everyone should click on over to Coproymous' link, mostly because the local-DC attorney that the really crappy NY attorney hired to advise him? His name is Sherlock Grigsby. Sherlock Grigsby.
posted by atomicstone at 11:35 AM on December 19, 2014 [3 favorites]


Sherlock Grigsby.

In the course of a previous job, I had occasion to (very briefly) correspond with someone in the general counsel's office for GE whose name was Buckmaster de Wolf, which remains probably the best name of a real person that I've ever heard.
posted by Copronymus at 12:59 PM on December 19, 2014 [2 favorites]


Criminal law classes should absolutely include material on rape. If the student can't handle that, they really shouldn't go into criminal law.

Please read the thread. Criminal Law is a required 1L class. Most of the people who take it are not planning on going into criminal law.
posted by naoko at 1:00 PM on December 19, 2014 [3 favorites]


Ah. I apologize. I read the article, but not the thread.

Still--I have a hard time believing that this is a zero-sum issue. It sounds like there's a clear need to address how this is taught, but I'm not okay with it being something a lawyer can just opt out of, nor something that can be nixed completely from a basic criminal law course. I get that there are trigger dangers and that the professors need to tread carefully (and be taught how to do that if they aren't already). But pulling the whole thing seems extreme to me.
posted by scaryblackdeath at 1:22 PM on December 19, 2014


I'm not going to be a criminal defense lawyer. Or a prosecutor. Or any other kind of trial lawyer. I don't need to know about murder, rape, DUI or, really, the difference between assault and battery. Look, I happen to be of the opinion that one should be able to get a specialized (only) JD AND be licensed to practice a specific kind of law. Bc Wills, Trusts and Estates was boring. And mostly useless. The students who want to practice criminal law will, in their 2L, and 3L years, internships, clinic, trial skills class, mock trial, and first year jobs
-learn how to do all the things you're concerned about. There is just such little utility gained and so much possibility for harm that extensive discussion of rape law and case history in a 1L class is a waste for everyone.
posted by atomicstone at 3:13 PM on December 19, 2014 [1 favorite]




Recognising that this is an entry-level law course but accepting for the sake of argument the 20% sexual assault figure and therefore acknowledging that rape is going to be a challenging topic that a high proportion of lawyers will encounter one way or another, I would be deeply, deeply reluctant to hire a lawyer whom I knew was unable to intellectually engage in certain topics, even if those topics did not obviously overlap with whatever my own legal dispute might involve.

Why? Because I would have to ask myself what other topics this lawyer is unable to properly engage in, that I don't know about. After all, I am hiring them for their ability to apply their insight and their knowledge to solving my problem. If they are unable to do so because they are unable to get past their own problems, how is my cause being served?

If I was a biology teacher being prosecuted for teaching evolution in my class in a fundamentalist state or country, then a lawyer who is unable to get past their own belief in Creationism to deal with complex issues relating to evolution is unlikely to be able to gather the material needed to deliver a convincing defense, let alone drive that defense home in court. If I was a father trying to gain weekend access to my children, how would I be served by a lawyer who was unable to engage with broken families and child abuse? If I was a company executive trying to sort out a complex legal knot over a merger, how would I be served by a lawyer who was unable to get over their aversion to matters of private ownership?

It has been pointed out that most people taking this entry-level course do not go on to criminal law. But apart from awareness of the breadth of law, what is being taught in entry-level courses is a way of thinking, an ability to put oneself to one side and engage in the topic at hand. If a lawyer does not develop that ability early, when will they develop it? How can we know that they will ever develop it, or are even capable of developing it? Students need to deal with personally challenging topics because if they are given a free pass on those, they may never develop the resilience to deal with the subject they are ostensibly being taught.

Finally, there's the obvious question. If this stuff can be skipped over without a problem then why is it in the course to begin with? I remember my own entry-level University courses. They were dense, because the course had one, two or three semesters to teach us a shitload of basic stuff that we had to know before we tackled anything more advanced. Everything in those courses was there because it had to be there. If a topic was not essential, it would be replaced by one that was.
posted by Autumn Leaf at 3:40 PM on December 21, 2014


If I was a father trying to gain weekend access to my children, how would I be served by a lawyer who was unable to engage with broken families and child abuse? If I was a company executive trying to sort out a complex legal knot over a merger, how would I be served by a lawyer who was unable to get over their aversion to matters of private ownership?

A lawyer "unable to engage with broken families and child abuse" is not going to choose to practice family law. A lawyer "unable to get over their aversion to matters of private ownership" is not going to choose to practice in mergers and acquisitions. The practice of law is specialized in ways that the first-year classroom is not.

If this stuff can be skipped over without a problem then why is it in the course to begin with?

The things that need to be learned in first-year crim are the fundamentals - what is mens rea, what is meant by a voluntary act, how do you read a statute - and the general "thinking like a lawyer." Different profs focus on different crimes in order to teach those things, and there are costs and benefits to all of the different choices that can be made. (The same thing is true for other first-year courses - in torts, for example, some people end up learning about liability for keeping dangerous animals, and some people don't.)
posted by heisenberg at 12:59 PM on December 22, 2014 [2 favorites]


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