Teaching Rape in a Criminal Law Class

I am teaching Criminal Law this semester and just finished a unit on rape. I am always fascinated by the number of colleagues I encounter who do not teach rape in their introductory criminal law class, presumably because they fear the topic is too controversial or inflammatory. I, on the other hand, can’t imagine not teaching it. It’s a topic that unfortunately touches so many students’ lives and also serves as a wonderful example of how changing social norms and the criminal law shape — and reflect — each other. I also find every year that my two classes on rape law contain some of the most thoughtful and engaging class discussions of the entire semester. I am always tremendously proud of the way my students approach the materal. But maybe my perspective is unique and I would love to hear other thoughts. For our law professor readers, do you include a unit on rape, and why or why not? For our law student readers, did you find it important or useful to cover rape law in your introductory crim law course?

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18 Responses

  1. Nontrad 1L says:

    We just did our unit on sexual assault and I’m glad the prof chose to include it. She touched on the evolution of the law, constitutional issues (of gender-specific sanctions), statutory interpretation, and a few other issues that seemed to me to be quite interesting examples of basic criminal law issues. Plus, nobody said anything silly in class. Good stuff.

  2. malecrimprof says:

    The question is really whether it is practical to use the substantive crime of rape to teach the concept of mens rea. Both should be taught, but teaching the latter by using the former can easily lead to confusion in the students’ understanding, in particular because biases presented both in and out of the classroom (where you will never hear them) may affect the course of the discussion. One may use the example of human slavery to discuss the property concept of chattels, but it is not to be supposed that it is the example most conducive to full understanding for the maximum number of students.

  3. I don’t teach rape in my criminal law class. Since criminal law is a required 1L class, I believe that the best thing the course can contribute to a student’s education is teaching students how to interpret and apply statutes. In the first year, criminal law is the only primarily statutory course that students will get exposed to. Given the time spent learning basic concepts such as mens rea, actus reus, statutory interpretation, homicide, the defenses, attempt, conspiracy, and complicity, there is little time to cover other substantive crimes. In the end, my goal isn’t for the students to learn the elements of particular substantive crimes — it is for them to be able to pick up any statute and be able to interpret and apply it. On every exam I have given, I always supply the students with one or more statutes with crimes they haven’t seen before. In other words, my goal isn’t for them to learn what constitutes particular crimes such as theft, embezzlement, burglary, robbery, rape, and so on. It is for students to learn basic skills they can use for all criminal statutes they might encounter.

    Rape is certainly an interesting topic, and would certainly work well in courses that focus more on particular crimes than mine does. So the answer to the question depends heavily on what kind of course you teach and what larger purposes you want to accomplish in your class.

  4. cranky says:

    Daniel, why is homicide a “basic concept” but rape a “particular crime?”

  5. crimlawprof says:

    I’m with Jennifer.

    One of the problems with teaching homicide as the only substantive crime is that homicide is an abstraction to most law students (fortunately!). Homicide is something that you see on TV, not something you might experience or be charged with. As a result, the class discussions on homicide are always superficial. In contrast, rape touches close to home, and forces the students to really focus on the issues.

  6. Cranky — Homicide is not a basic concept, but I’m not sure I could teach the course without at least covering homicide. I think that covering at least one substantive crime has value; otherwise, the course might become too abstract and radically different from nearly all other criminal law classes. Homicide is generally covered in most criminal law classes, more so than any other substantive crime.

    Crimlawprof — I’m not sure whether the fact that “rape touches close to home” forces students to focus on the issues. I think it could be possibly be a distraction. Whether this happens, of course, is a product of how it is taught. If taught well, any substantive crime would suffice. Would you teach a course that covered rape but not homicide? I think that homicide has become the must-cover substantive crime because of tradition. But if there are professors who don’t cover homicide, I applaud their willingness to be radical. I’m not yet prepared to go that far.

  7. humblelawstudent says:

    I’m curious. Do any of you feel that the choice is influenced by the professor’s gender? It seems reasonable to me that a male may be more uncomfortable than a female in discussing it. Or, am I just somehow sexist?

  8. ??? says:

    Why would a female be more comfortable discussing rape than a man?

  9. cranky says:

    Daniel: So you teach homicide rather than rape because most other criminal law professors teach rape rather than homicide?

  10. Christine Farley says:

    Readers in the DC area may want to check out this film at the National Museum of Women in the Arts:

    NO! by filmmaker Aishah Shahidah Simmons

    Nov. 8, 2006 7:00 PM – 9:00 PM

    NMWA(13th St & New York Ave NW)

    Suggested donation $5-$10

    NO! is the groundbreaking documentary unveiling the reality of rape, other forms of sexual violence, and healing in the African-American communities. Director Aishah Shahidah Simmons will be present at the screening to discuss the documentary. NO! is presented through partnership between INCITE! DC– Women of Color Against Violence and the National Museum of Women in the Arts.

  11. No, cranky, I said I teach homicide because nearly every criminal law class teaches homicide. My estimate is that nearly 100% teach homicide and probably less than 40% teach rape.

  12. former law student says:

    Stragely enough, we covered rape in Con-law, after Lopez. In my crim-law class sexual assualt was just a statute, and a boring one at that. I seem to recall the prof trying to incite a discussion about it, but I wasn’t paying attention. Sexual assault is, after all, not a very contraversial law. No one is going to argue rape is a good thing. (Of course, I said the same thing about state sponsored torture in the same class…go figure.) So, in the end, it became one of those things that the state prohibits you from doing, like murder and theft. People read the cases for sexual assault though.

    In con-law we had a very lively discussion in which I was accused of supporting rape (by the prof) because I opposed federal intervention in a well established area of criminal law. That was a fun class, though plenty of people were trying to hide in their chairs when the prof started yelling.

  13. Laura Appleman says:

    I teach rape and homicide, spending about three classes on rape. I find that both are good for teaching students how to do statutory interpretation, etc. And I have plenty of time to cover the basic concepts….

  14. cranky says:

    Daniel: Yes, I swapped my word order. But why is “everyone else does it” a reason to teach homicide rather than rape?

  15. ~spad says:

    Former law student makes a good point. It seems that very few law students, would be willing to take a position supporting rape (or arguing in favor of the perpetrator). The real world and Hollywood provide a wide array of hypotheticals where homicide is defensible, excusable, or just makes us feel good (like when the rapist gets killed even when it is clear that he will not murder the victim). The same cannot be said for studying the crime of rape. Indeed, are there any criminal law concepts addressed in rape that are not addressed in homicide? Jennifer, how many of your students argued against victim?

    Hat tip – excellent post Jennifer, it makes me wish we had studied rape in my crim law class.

  16. 1L says:

    As the original poster mentioned, I cannot imagine a criminal law class that failed to cover rape.

    I am grateful my professor decided to cover rape for two reasons:

    (1) You realize there are several important legal issues surrounding rape that you really cannot learn about by simply reading newspapers or watching television. As a law student/future attorney, as well as a woman, I think it’s important to at least be aware of these issues.

    (2) Since starting law school (which, admittedly has not been that long), this has been something that has actually sparked an interest for me personally, in terms of thinking about what I’d like to be doing with my degree after law school. I’m not sure if this is true of every law student, but I know that I, for one, have been looking for those little flashes of inspiration… something to remind me why I came to law school in the first place. With finals rapidly approaching, things like these help keep the 1L experience in perspective.

  17. Hypothetically Speaking says:

    The argument in favor of rape would never be made because the popular conception of rape is violent and it clashes with the popular conception of autonomy: it is best if I choose it.

    But, you know, one could argue that another person can make choices for you that you did not choose and that are enjoyable for you, anyhow.

    For instance, if you stepped out to the bathroom and your date ordered an obscure, exotic dish for you that you hadn’t tried before and then when you protested to this violation of your consent, she tossed some of the food in your mouth and you inadvertantly chewed it and tasted it and it was remarkably good…well, there was no consent, but it wasn’t bad. (It was bad in the sense that she overrode your consent, but the food didn’t taste bad.) It is possible that the food tastes so good that it outweighs the violation of your consent and you forgive her for ordering for you and tossing food in your mouth and you happily finish the meal.

  18. Sailorman says:

    Rape is a difficult subject to teach, and discuss, well. I think many people are unable to learn about it in an intelligent fashion. In my experience, even people who discuss or advocate regarding rape issues (and who are theoretically capable of having an objective discussion) are frequently unable to do so.

    One of the most important lessons we learn in law school is the ability to “step back” from the facts of the case and analyze/discuss the LAW. Rape is probably one of the, if not the, most difficult subjects in that respect.

    So what does that mean in practice?

    Well, not all professors are especially skilled. Any professor who cannot remain objective during the discussion should probably avoid rape.

    Also, every class and school is different. If the class is capable of being objective and analytical, then discussing rape can be one of the best ways to show the fine line between consent and crime; the issues with intent, apparent consent, etc. But if the class has proven themselves to be incapable of that type of objective analysis then it should be avoided.