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

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

Or, should we allow students to “opt out?”

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.


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.


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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“Now more than ever . . . .”
Why? Because law students are more wimpy and coddled than ever before?

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.

That would depend entirely on WHOSE “myths and stereotypes” were “voiced”.

The agendized harpies in class would immediately call for the bleeding head of the professor who dared “debunk” their bunk.

And, in many-to-most cases, the gutless administration would deliver it on demand.

I hope that is a tattoo – spelling that bad needs to be permanent.

“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.”

That simply is not true. There is a very great tension between teaching “practicum” and very esoteric, academic law, even in schools that make ANY attempt at reaching some balance.

The highest-rated schools teach the LEAST trade-craft, in my observation, and attending a good school for turning out actual LAWYERS can affirmatively hurt you if you want to pursue a career as a law professor.

    Valerie in reply to Ragspierre. | December 28, 2014 at 1:12 pm

    “South Texas College of Law, the no-name law school that has the reputation of beating the likes of Harvard and Yale at moot court and mock trial.”

      Ragspierre in reply to Valerie. | December 28, 2014 at 1:51 pm

      Yeeeeeup. U of H, too. Oddly, many of the kids who did really well in mock/moot competition were NEVER going to set foot in a courtroom if they could avoid it.

So, is this why we don’t talk about nuclear war any more ?

Rather, professors must consider their pedagogical approach to sensitive topics and to the impact of their teaching on students.

Rather, professors must consider their pedagogical approach to sensitive topics and to the impact of their coddling on students. FTFY

Seriously, will these future lawyers have a “Trigger Free Zone” sign on their office door?

We could generalize this concept. We should stop teaching about civil rights and civil liberties too, because those are subjects that just get people on both sides of the equation too worked up. Better off not even bringing those things up for discussion.

Students who are “triggered” by this topic should either check themselves into counseling, or check out of law school. People who cannot think straight under stress are incapable of practicing any kind of law ethically.

So the solution isn’t to stop teaching it, it’s to exempt students from having to learn it.

Which is not a solution at all. If you don’t want to deal with rape law, don’t go into law, right…? I mean, it’s a sad thing, genuine victims need all the support they can get and I truly mean that, I’ve given a little such support myself in my life. But pretending that the student being excused and absent doesn’t impact the teaching…! That would make lecturing an empty room “teaching”. It’s not.

We just saw multiple universities allow law students to opt out of exams because they were traumatized by events in Ferguson and Staten Island. If that is the criteria for “don’t go there” then surely any discussion of rape is equally verboten.

I am unsure that law schools today exist for much more than collecting tuition. No, it’s not quite that bad but it’s not far away. Most attorneys (I do not consider ‘lawyer’ as equivalent to ‘attorney’) in family/custody law are basically technicians and whining slanderers of opposing counsel. Oh yeah, and their primary thought is getting an award of fees so everything opposing counsel does is intransigent and frivolous.

Trying to argue the theory of no-fault actions as a form of compelled formal arbitration read aloud got me blank stares and muttering. Trying to argue that divorce law (as a statutory creation) has no place for “filling in” so-called “traditional approaches” with common law causes heads to explode yet no one seems to be able to cite authority to prove I’m wrong. To me, a lot of attorneys today are an insult to those who really are lawyers (such as Mr. Branca).

I forgot to click the notify button so I have to post another comment. You guys should make the default to always notify unless clicked off.

    The governing principle is opt in, not out. Similar to the ruling on interspecies marriage in Europe, but notably dissimilar to Obamacare, implied consent does not confer legal or moral right to engage in a loving relationship or to collect, respectively.

This appears to be an extreme example of Special Snowflake Syndrome:

So, looking for other good examples of Special Snowflake Syndrome, I found this:

“Cop here. Went to a call for a 7 year old chasing kids around the neighborhood with two kitchen knives in his hands. One of the kids mothers called. I arrive and make contact with the woman who called. She said she saw the kid chasing her son, so she went outside, grabbed the kid, and screamed at him to drop the knives.
I found the kid with the knives and his mother. His mom screamed at me, saying that the woman who called had no reason to grab her son and yell at him. She said he wasn’t going to hurt anyone and he was just playing. She said her son has ADHD and being touched by strangers is a “trigger”. She demanded that i charge the woman who grabbed her son.”

Yup. Is this a component of “he/she was turning his/her life around” or “he was a gentle giant” or other incongruous things we see in the news?

Pro-choice is a trigger. Yet civil rights lawyers in particular, are notorious for their inhumane response. 10 in 10 assaults against wholly innocent human lives are committed by an intimate partner or a paid surrogate.

Libertine religion or normalization of dysfunctional and fetish behaviors has consequences.

Individual dignity. Intrinsic value. Go forth and reconcile.

“quickly debunk and otherwise address any myths and stereotypes that are voiced during discussion”

Who gets to define “myths and stereotypes” and how those are addressed? The feminist spin machine no doubt.

Dunno what is taught in law schools on this subject but one would hope there is now acknowledgement in the field of law that SOME accusers do lie to game the system for personal gain.

It would appear everyone in the Violence Against Women industry is as big a dullard as Mike Nifong on this reality. It’s very similar on the family law front and Domestic Violence.

Here in Thurston County Wa- we have a couple of judges who with close to 30 years on the bench between them said publicly they have NEVER seen a false accusation. This was not odd since the biggest fathers rights movement in Washington state at the time was out of Thurston county due in part to these judges automatically presuming Male Gender = Guilty.

Start sniffing around for VAWA grant money to your police and prosecutors offices. Once that money starts flowing, rest assured your county will have a DV problem into perpetuity… because w/out one, they lose those dollars. Once there, you will start see propaganda in the court house institutionalizing it like in the video below.

Not to go off into a tangent, but these judges are there for life… this county is the seat for the state (meaning a lot of liberal money goes into making sure these ideologues stay on the bench) where all lower contests to state statutes end up. Sucks to be a man when these judges are presiding in your family law case… or worse DV.