Rape law is a “trigger.” Should we stop teaching it?

Rape law is a “trigger.” Should we stop teaching it?

Should teaching the law of sexual assault and rape be banned from law school classrooms because it could be a “triggering” event for some students?

Apparently, there is a movement to do just such a thing.

Earlier this month, Harvard Law professor Jeannie Suk wrote a wonderful article at the New Yorker discussing the risks of sheltering law students from the study of laws governing rape and sexual assault cases. In the article, she takes academia to task over its oft-cowardly approach to professor–student classroom relationships, and points out that current “culture signals” demanding less discussion of potentially “triggering” topics are actually harmful for the future of prosecuting sexual assault.

In part:

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.

Because we can’t have nice things in academia anymore, we have, of course, a response.

Margaret Drew is a law professor at the University of Massachusetts, and she thinks that Jeannie Suk’s article “misses the point”:

The problem is not whether the topic should be discussed in the classroom. The issue is whether the instructors are creating an appropriate atmosphere for discussion of what for many men and women is a real and devastating event.

The question is not whether the law of rape is taught, the question is how is the law of rape being taught? As Vivian Huelgo, chief legal counsel for the American Bar Association’s Commission on Domestic and Sexual Violence commented, the issue is responsible teaching.

Just because students are voicing concerns that rape and other sexual assault topics can be triggering and re-traumatizing does not justify professors resolving those concerns by eliminating the topics. That may be tempting as an easy solution, but it is an extreme one. Rather, professors must consider their pedagogical approach to sensitive topics and to the impact of their teaching on students.

Sounds reasonable enough. When my criminal law class addressed the subject, my professor gave us a heads up during the preceding class, and didn’t allow any tangential funny business. It was State v. Alston whether we liked it or not, and anyone who had a problem with that was welcome to use one of three very generous “free” absences to their advantage.

The problem with what Drew focuses on in her article isn’t the idea of maintaining a respectful relationship between professor and student, but how she envisions that idea playing out in the real world:

Solutions are not difficult. Adverse consequences should not result from a student’s election to forego classes that address rape.

Let’s try this instead: Adverse consequences should not result from counsel’s election to forego hearings that address [triggering topic.]

Down goes that ship. Women and 1Ls first.

This argument has been voiced on numerous occasions—just let them skip that one class!—and it never gets any smarter because it ignores the simple fact that everyone who has ever sat through an episode of Law & Order knows to be true: cases can take a turn. I know transactional attorneys that have ended up in court defending clients accused of violent crime. It doesn’t happen often, but it does happen, and when it does you don’t want to be the one who talked yourself into ignoring a chunk of one of the foundational bodies of case law.

Next:

Professors must be prepared to curb any “jokes” on the topic and quickly debunk and otherwise address any myths and stereotypes that are voiced during discussion.

No argument here. There’s one in every class who is doomed to wash out, and it’s usually the guy or girl who makes a snide comment during the rape lecture about statistics or prostitutes or some other awful thing that has nothing to do with the discussion and less to do with the legal standard governing the case at hand.

Rape isn’t funny, and neither are you.

Finally:

Sensitivity in how questions are framed is essential. While having students argue positions with which they do not personally agree is a sound pedagogical method, classes that address sexual assault may not be the appropriate setting for the method.

This one hurts the most because it takes the first point one step further and actually handicaps rape survivors by assuming that they are by default incapable of handling themselves in an adversarial situation that touches on their personal life experience.

Should we really let experience dictate what aspects of the law are relevant? Do we teach Sherry, but not Berkowitz, because the jury instructions in Sherry offer some small comfort to those who said “no”?

The truly terrifying thing about all of this is that law school isn’t something you do to chip your way toward the elusive Ph.D; it’s a trade school. Similarly, law practice isn’t an expensive excuse for activism; it’s a craft that requires a more finely-tuned brain than is required to pass out informational pamphlets on street corners. A great deal of the study of law involves choking back the vomit and reading cases about terrible murders, and sex perverts, and elder abuse, and learning from them.

In her article, Drew notes that sometimes, reactions of rape survivors to “triggers” are similar to those of returning soldiers suffering from PTSD, and I don’t doubt that. Unfortunately for survivors of all sorts of crimes, though, the world isn’t built to cater to the reactions of every single person who has ever suffered from mental or physical trauma. Running away from the triggers won’t make the triggers go away, but that’s exactly what Drew is suggesting when she suggests that survivors be allowed to step back and take a pass.

Law school exists to teach method and mindset as much as it exists to teach black letter law; if we allow professors to encourage the type of mindset that Drew insists is the solution to the sexual assault trigger question, we will eventually reach a place where black letter law becomes irrelevant.

h/t ABA Journal

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