Teaching Sexual Assault

This week, I began teaching the unit on sexual assault to my Criminal Law class. I – untenured, female, and in my second year of teaching – walked into my classroom and wrote “carnal knowledge of a woman forcibly and against her will” on the chalkboard, thus beginning a two week exploration of the law of rape. Am I brave? Am I foolish? Or am I simply doing what I am supposed to do as a Criminal Law professor?

A couple of senior professors from other law schools had advised me not to cover sexual assault as part of my Criminal Law class at all. It was too risky, I was told. And this is generally true. All classes have an element of risk and uncertainty: one can never be quite sure how any given class is going to turn out on any given day. The most beautifully constructed notes containing the most carefully (and charmingly!) written lecture can produce quizzical looks, yawns, and dead silence during the discussion period; meanwhile, those notes that might as well have been written on napkins during the faculty meeting that preceded the class can produce the most brilliant, Socratic unveiling of that hard-to-understand, but oh-so-fundamental concept. So, yeah: there’s uncertainty built into all classes. But, the uncertainty associated with teaching sexual assault is terrifying. Will my question about the mens rea of nonconsent yield a response that indicates that one of my students has been accused of rape? Will another response indicate that another student has been raped? Will a screaming match break out? Will someone break down in tears? Will that person be me?

I have my strategies, though: first, I avoid any attempts at humor during the unit, which is a departure from my approach to the rest of the class. Criminal Law frequently involves people doing horrible things to other people. The fact patterns of the cases are awful much of the time. So, as a professor, one could go into the classroom and lament man’s inhumanity to fellow man for an hour and a half; or, one could treat it like a dark comedy. I typically choose the latter. I prefer the Fargo approach to the There Will Be Blood approach … except during the unit on sexual assault. During those weeks, I am Daniel Day-Lewis as a turn-of-the-century oil prospector. (Interestingly, even dark comedies tend not to make light of sexual assault. People are killed all the time in dark comedies; but they are infrequently raped. If they are (think of Ving Rhames’ character in Pulp Fiction), the rape scenes are not supposed to be funny; they are supposed to be horrifying.)

My second strategy: instead of calling on students at random, I only call on volunteers. But, I am not entirely comfortable with this strategy. Undeniably: rape is terrible, and talking about it can make some people profoundly uncomfortable. But, you know what else is terrible? Murder. Voluntary manslaughter – which involves case after case of men experiencing sometimes adequate/sometimes inadequate provocation and killing their wives – is terrible, too. Yet, I do not hesitate to call on students randomly during the homicide unit. Some Constitutional Law professors tell me that, during their units on abortion (and definitely on the day that they teach Gonzales v. Carhart, if they teach it at all), they only call on volunteers. The exceptions that professors are willing to make to their usual pedagogy might be a bit problematic. Both abortion and sexual assault are gendered subjects. Is there something about topics that disproportionately and distinctly affect women that makes it appropriate to remove them from normal classroom procedure? One cannot argue that professors make these exceptions with respect to abortion and sexual assault because these topics are especially controversial. You know what else is controversial? Same-sex sodomy. Also controversial: affirmative action. But, the professors whom I have come across do not make exceptions to their practice of cold-calling when they teach Lawrence v. Texas or Grutter. (Indeed, I feel for the student who is a racial minority and who is called upon to be Socratically drilled about Grutter. A sufficiently competent performance may exonerate him or her from an implicit accusation that he or she is a beneficiary of the very program upheld in Grutter. And a bad performance? Well, that’s pretty good evidence that Justice Thomas was absolutely correct in that vigorous dissent….) So, why should we, as professors, be especially sensitive about abortion and sexual assault? Does our sensitivity construct women as especially sensitive? Or does it reflect the belief that crimes against women and gendered issues such as reproductive rights are Other?

Nevertheless, I shall adhere to my strategies, and I shall humorlessly and sensitively teach my students the law of sexual assault. And I shall sigh a huge sigh of relief when the unit is over and we can move on to lighter things – like Bernie Goetz shooting four, young, unarmed racial minorities on a New York City subway. [sigh]

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14 Responses

  1. nidefatt says:

    Here’s an idea: Introduce it using a voir dire from a defense attorney. If you think your job is hard, imagine what it’s like for us that TRY these cases in front of 12 people who are NOT volunteers.

  2. One thing that gives the sexual assault class an added sensitivity requirement is that you can be pretty sure no one in the class has been murdered, but it’s quite possible (likely, even?) in a large class that someone has been sexually assaulted. Even if you extend the consideration to people knowing someone who was a victim, rapes are much more common, yet harder to talk about. I’d be more likely to share that a friend was murdered than raped, because it’s less of a private thing. So perhaps there’s a gendered element to it, but I think there’s more to it than that, for sure.

  3. Stephanie says:

    One note, not only women can be raped and sexually assaulted.

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  5. npm says:

    You can be sure no one in the class has been murdered, but they might have been close to someone who was. From a This American Life episode (http://www.thisamericanlife.org/radio-archives/episode/342/transcript) on the subject:

    Ira Glass: “You know how murder figures into so much of American pop culture? On crime shows, and thrillers, and video games and all kinds of stuff. Well, if you knew somebody who actually got murdered, it turns out you might not be into that stuff so much. … Rachel Howard’s dad was killed when she was 10.”

    Rachel Howard: “You know, at the Parents of Murdered Children Conference, they have certain presentations really down to give you a little punch in the gut. And one of them is that they have a whole one on this murder mystery dinners. And the way that they always do it is they say, let’s just pretend that you were going to have a rape mystery dinner and you were going to show up and the rule of the game was going to be that someone’s been raped, and we’re all going to find the rapist. That wouldn’t go over.”

  6. Schedlinski says:

    There is at least an argument that someone who takes the trouble to sharpen a screwdriver to a blade and threatens another person with it is not completely “unarmed.”

  7. Steve says:

    Are you familiar with James J. Tomkovicz, On Teaching Rape: Reasons, Risks, and Rewards, 102 YALE L.J.. 481 (1992)? Some valuable lessons in there.

  8. I’m hoping that my comment with the link is just in moderation …

  9. I’ll try again without the link:

    The reason rape, in particular, is different:

    Everyone knows someone who’s been raped, though they may not be aware of it (yet: they’re young).

    It is a statistical certainty that at least one person, probably a woman, in your classroom has been raped. It is very unlikely that she reported the crime, and even less likely that it made it all the way through to a conviction. Use Daly & Bouhours [Crime and Justice Vol. 39, No. 1 (2010), pp. 565-650] as your starting point.

    Further, the chances are that around one out of 20 males has raped someone, and has not been caught — so there’s a nontrivial chance that there’s a rapist in your classroom, though he may not think of himself in those terms. It is pretty much a certainty, though, that everyone in the classroom knows a rapist.

    Now, I’m not 100% sure that you *have* to call on volunteers, theoretically. It’s *conceivable* that if you start with Daly & Bouhours and discuss the meta issue, “how do we talk about this major crime, one so common yet unprosecuted that this room doubtless includes victims and may possibly include perps”, you could come up with a framework for discussion that doesn’t rely on self-selection.

    And if you did, it would be a pedogogical breakthrough worth writing up for the literature. It’s certainly better than ignoring the issue, which is damn close to educational malpractice.

  10. Anna says:

    Although I understand the reasoning behind your approach, calling on the volunteers in a first year law school class is concerning to me. The volunteers in a 1L class tend to be the most extreme or outspoken – i.e. the people no one takes seriously/rolls their eyes at…

    Why make sexual assault different than other crimes? If sexual assault/rape is a crime, than treat it as such. Why aren’t you similarly concerned that someone might have been carjacked/kidnapped/assaulted? (In law school, I made a terrible terrorism joke only to be excoriated because a sectio nmate’s family member had been killed by a terrorist.)

    When you treat a certain class of crime as “special” or “different” in your teaching, you are indicating that it is different from a “normal” crime. In my opinion, in order for rape and sexual assault to be normalized as “real” crimes, you have to treat them as you treat other crimes. Rape is a crime. Crime is real. If you’re prepared to joke about “real” crimes, then be prepared to joke about rape – otherwise you’re indicating that you believe rape belongs in a different category – not “real crime.”

    Also, I had a Crim Law Prof who only taught statutory rape – and I always considered it a cop-out – and a weakness in my legal training.

  11. Jeff Baker says:

    Prof. Bridges and others,

    I humbly suggest that you seek out some clinical teachers in domestic violence clinics. I am a man who teaches and supervises such a clinic and often have to thread the needles you describe with men and women students who often have profound experiences with the subject matter. Raising these issues in the context of a real client who is a victim or who is making allegations can be intense. The clinicians deal with this constantly at an acute level and may be a good resource for you.

    JRB

  12. Shawn Boyne says:

    I had the good fortune of taking a course in Gender Discrimination while I was at USC from Susan Estrich. I remember reading an excerpt from her book, REAL RAPE, at the time. In the middle of a fairly large class, my Post-traumatic stress decided to pay me a visit. I ran out of the class in tears. As I heard later from the other students in the class and am recalling through a very fuzzy memory of the incident, Susan returned to class and said something to the effect that now the class had a clearer picture of the harm that rape causes.
    Now as a professor teaching criminal law, I don’t teach rape in criminal law but I do teach the rape shield law in evidence. Somewhat ironically, in one of my evidence classes, a female student did leave the class in tears one semester after another student made an insensitive comment that is not worth repeating. Given the statistics on sexual assault, I think that the normal rules of the game should not apply when teaching rape. I applaud your intuition to only call on volunteers.

  13. Khiara M. Bridges says:

    Thank you all for your comments on my post. I really appreciate them. I’m three days into the unit; I have two more to go. There have been no tears; nor have there been any shouting matches. (There was, however, a close call on Day 2. A (male) student attempted to interrupt another (male) student who was arguing in favor of a more lenient sexual assault law. I managed to silence the interrupter with a “hold your horses.”) I will read the Yale Law Journal article. I will talk to clinical professors. I will continue to call on volunteers. I will continue to think about how to teach sexual assault sensitively without Othering the topic. And I will be relieved when it’s all over.

    Also, Schedlinski: although two of the teenagers on the train that day had screwdrivers, Goetz was never “threatened” with them. Instead, with screwdrivers tucked away into coats, two of the four approached him, and one said, “Give me five dollars.” It would make the case a whole lot easier if the potential weapons had actually been brandished.

  14. Student says:

    Now that the class is over, I thought I would let you know what some of us in it thought of this portion (and yes, I know I should be studying for the exam right now). This post was linked on our section facebook for awhile, which helpfully confirmed for us that you were, in fact, taking volunteers.

    We had the same discussion about volunteers vs. no volunteers outside of class- one of the students had been affected personally by a crime that was a topic in a writing class assignment, and felt that it was wrong to other rape by not calling on volunteers. A number of us felt that given the likelihood that multiple people in the class had been sexually assaulted it was better to take volunteers.

    There were plenty of heated discussions – we just kept them out of class. Usually we were more upset by the decisions of the courts than our classmates. I don’t think we’ve ever had so many discussions about a topic outside of class.

    Overall? The general consensus was that we were nervous to handle this topic in class too, but that you handled it well, and we’re glad we had the discussion.