In my criminal law class, I plan to spend some time discussing the law of rape. This is a hard subject to teach, not just because people have strong feelings about it but because (1) it's fairly likely that at least one women in the class has been a victim of rape or attempted rape, (2) many women in the class are deeply and personally concerned about the risk of being raped, in a way that people aren't with regard to homicide (which is rarer) or burglary (which is less serious), and (3) many men and some women, knowing this, are reluctant to speak candidly about some of the thorny issues in this area, which deprives everyone in the class — men and women alike — of a thoughtful, substantive discussion.
As a result, some professors just don't teach the subject at all. I don't want to take that approach; I think it's my job to lead students to think about important issues even when they may be personally difficult for them.
Still, I naturally want to do this as effectively as possible, and to do that I think I need to make students as comfortable as possible. I don't believe that making students comfortable justifies eliminating certain substantive topics or ideas. But I do think that there are ways of presenting the material that will increase students' comfort without sacrificing the substance, and that will actually make the substance more accessible.
Could those of you who have studied the law of rape in criminal law class (and those who have taught it, of course) tell me what worked well in the classes you've had? Any particular nonobvious pedagogical tricks that have really helped you understand the subject, or made it more exciting? Any good ways that teachers have defused tension in class, or cleared up confusion? (For instance, I was thinking about asking students to imagine the victim being their daughter, and the accused being their son [though not in the same case!], to see if this will help them see things from both sides, and will help them recognize that both men and women have a stake in having the law be fair both to the victim and to the accused. Did your teachers try this, and, if they did, did it work?)
If you have answers, please post them in the comments. Please be selective; I'm not looking just for interesting or outrageous stories, or arguments that the law of rape system is unsound in some ways. I'm looking, selfishly, for tips that would help me teach the law of rape in the standard first-year criminal class more effectively. Many thanks in advance for your help.
Whether because of the pedagogy, the gender of the instructor (and her not-at-all squeamish approach), or simply the maturity and open-mindedness of the students, it simply wasn't THAT touchy an issue.
Without a doubt, the most inflamatory issue was that of female "provocation." Male students had the sense to stay out of that briar patch, but there was a heated discussion between female students.
We spent considerable time on teasing out the fine distinctions regarding "consent". I think that using creative (perhaps absurd) hypotheticals that were unlikely to have hit too close to home with students probably helped.
For instance...
Male tells woman he's going to examine her vagina with a "medical instrument" — she consents — instead he uses his penis — certainly rape.
Male tells female he's going to cure her by having sex with her — she consents — not rape.
My advice... Don't be squeamish about it.
It's hard to get people theoretical. But confusing topics can sometimes help. Attempted statutory rape, for example, especially if you haven't yet taught attempt or strict-liability crimes, is wonderful. (If you don't want to go there, I recall a similarly delightful contradiction in the Florida code---"attempted felony murder." Which leaves you with fewer punchlines.)
But in terms of what I've seen actually work? Nothing. Make like Mariano Rivera: keep your pitches down and work fast. Teach at the beginning, get your thick skin on, and get to homicide as fast as possible.
Tracy did depart from her usual methods for the rape unit. A few days before the reading assignment came due, she asked the class (via email) for volunteers to take part in a mini mock trial based on the facts of Rusk v State, 406 A2d 624 (Md 1979). One student served as prosecutor, one as defense attorney, and the rest were the jury. After the case was presented to the jury, the jury voted. This was all done in front of the whole class. We then discussed the outcome as a class. This approach allowed those students who felt comfortable to be closely involved, but allowed the rest of the class to see how the issues were aired and developed, allowing more distance from the facts for anyone who would be made uncomfortable by them.
Having said all this, I think the point of going to law school is to learn how to deal dispassionately with facts--not that emotions have no role, but being a professional means getting past any queasiness you might have about all the myriad painful and distasteful situtations that might arise in your cases.
I took Crim. Law from Prof. Ellen Podgor in Spring '04. She focused on variations between the MPC and other statutory schemes (i.e. "degrees" of rape, rape v. statutory rape, handling of marital rape - including, I believe, a case under the UCMJ), and the assigned cases brought out the distinctions. Part of the class was spent in small group discussion - if you were legislators drafting a rape statute, how would you write it, and why?
I found the technique highly effective. In addition to becoming familiar with varying statutory schemes, the students became familiar with difficulties in drafting a criminal statute.
It's possible I missed the point. Regardless, the class paid attention, the key legal issues were covered, and I didn't hear any of my classmates complaining after class.
My apologies if I sound like I'm underestimating young law students these days. I teach at a local college and I know kids are mature and responsible beyond their years. But some things never change, and I think one such thing is that people relate more to people their own age.
Another possible reason was Coughlin's spin on the law of rape. Her scholarship has led her to concluded that some of the oddities of rape law--the requirement of coroboration, the requirement of forceful resistance in addition to non-consent, and the commonplace introduction of sexual history (in the era before rape shield laws) were the result of a historical belief in the illicit nature of extra-marital sex. In her view, these "extra" parts of the common-law of rape result from the view that a raped woman was not only a potential victim but also a potential co-conspirator, whose charge of rape was intended to conceal a lack of virtue.
I think that particular view helps to diffuse tension by making the historical law seem more rational to modern sensibilities and showing that the solution to modern dilemmas may simply not exist; an unsatisfactory balancing is all that we can manage.
I'm not a law student, never have been, never want to be.
But it seems to me as a student of human nature, that if you:
1. Preface the discussion with what you just said.
2. Ask the students what they think you should do.
Those two things will put the students into a more open and receptive frame of mind, so that they will cut you more slack during the discussion.
2. Be especially careful about the "when does no mean yes" stuff. I remember my criminal law professor driving me up a wall with his citation of some study saying that "70% of women have said no when they mean yes." Recognize the difference between no-meaning-yes as "ask me again later" and "ravish me immediately even if I scream and sob and tell you to stop". This seems lost on some people.
3. Don't start with this, do homicide &some other stuff first.
4. But definitely don't skip it.
I'd advise you to teach rape the same way you would teach any other part of the criminal law course. At least, that's how Prof. Force did it and it worked well. While rape is a touchy subject given that the majority of victims are women, our class was mature enough to get through it. Don't treat the subject like it's taboo or contentious and your students won't either. (Heck, a fair number of your students are probably regular watchers of Law &Order: Special Victims Unit.)
As far as the content you should include. I'd start with a discussion of rape law historically (the utmost resistance requirement, the husband exception, corroboration, prompt victim complaint, Lord Hale jury instructions, etc.) to show just how male-friendly the old law used to be. If you really want to get your students' blood boiling, have them read Brown v. State, 106 N.W. 536, in which a rape conviction was overturned because the victim did not resist enough, despite screaming "Let me go!" Then list the modern elements of rape (we used the MPC) explaining how the cases have interpreted each element, especially the "force" element. Various cases should drive home the point that physical force is not necessary, threats can work too. Then you could lead the class in a policy discussion about what different levels of force and coercion should suffice for rape and the merits of inventing different crimes (e.g. the MPC's gross sexual imposition) for coercion that doesn't approach serious physical force or threat. Next, you'd have the class read cases exploring the lack of consent and discuss policy implications. And so on.
You probably should cover mistake of fact in the rape context and have your students read Director of Public Prosecutions v. Morgan 2 All E.R. 347 (1975) for one of the more bizzare fact patterns. You could wrap everything up with a discussion of statutory rape and the policy controversies behind it, and rape shield laws.
But I'd add one thing -- start with a discussion of rape sheild laws. My 1L crim pro prof did that and it very effectively dealt with the situation of balancing the accused rights versus the special needs of the complaining witness.
Remember the Tyson rape trial, &the outrageous but popular notion that the woman's knowing who Tyson was &going to Tyson's room, per se, established at least constructive consent? Query the straight men in the class: You meet Andrew Sullivan; you are enamored because befriending a famous writer will massage your ego; you are bothered by but tolerate his subdued but noticeable flirtation; just to be part of the literary A crowd, you accept his invitation to his apt. He's justified in forcing sex upon you, right?
A great leap forward for me in understanding the woman's perspective was thinking about the traditional straight male response to homosexual advances. At one time (maybe still) violence was the expected outcome in that situation. "Gays can do what they want to do, I won't bother them, but if one ever comes on to me, I swear to God I'll kick his ass."
Why was violence so typical, instead of mere ridicule or evasion? It was because the the guy being hit upon was being treated like a woman! No greater insult! And not being familar with the social role of woman, the guy freaks out. We don't see it as a common experience shared by 50% of the people we know; instead, it's so alien and upsetting to us that we respond with violence.
Which demonstrates how utterly unfamiliar men are with the female's perspective in the aquaintance-rape context, and why we must be walked through it step-by-step, with the facts manipulated to put us in the target's position.
Certain defenses (such as consent) are often raised. The law permits them to be raised in some circumstances. As a defense attorney, I don't care whether other women have said 'no' when they meant 'yes.' My only concern is whether I can present an argument that this woman said 'no' when she meant 'yes.'
Teaching the law of rape, because it is so highly charged for many of us, is a good context to teach the point that (generally) we work with the law as we find it. It was in studying the law of rape that the light bulb went on in my head and I realized that the law is not what I think it should be; it is what is written in those statutes (as interpreted by cases).
It seemed to do so because the Prof. treated it as though it was simply another topic - to be analyzed thoughtfully and carefully. Every teacher has a different style, but I think most would do well to treat this topic the same way as they do most others. This might not work for a teacher with a more unusual approach - but I thikn the students would respect someone who simply treats this in a proffessional manner. Of course, you have to be sensitive to the issue, but I don't think it needs to dictate how you teach the subject.
A high percentage, at least more than half, of all rapes have as the victim, a male. Think prisons.
Later on, we revisted Rape in the context of discussing the Act requirement. This enabled some interesting discussions of coercion/consent and the "force" requirement.
We also explored the range of statutes/policies on the subject, from states like New Jersey (M.T.S. Case), which seem to just require a lack of consent, to Antioch College's "affirmative yes" requirement.
It ended up being really interesting.
I took CrimLaw last year. I think it's effective to stick to the black letter law, but present varying hypotheticals that support or critique the doctrinal elements.
I remember the force/reasonable resistance element as being an especially sensitive area.
In my experience, it took us a class or two to become comfortable with the material. So, if you don't commit to substantial time up front, the students will never get over the initial barrier to comfort, and the classes that you do spend on the subject will be all but wasted. But spending the first few classes laying a foundation allows for the rest of the meetings to be very fruitful.
The point is, perhaps, that when "avoiding cold calls" you may be failing to address the perspectives of many students. Lynch was taken aback when he found he had spent most of his time preaching to the choir. Perhaps you might take a vote before some cases to gauge where the class as a whole stands, and tailor your comments accordingly, rather than allow the more energetic students to possibly skew the discussion.
1) Don't use any metaphors or phrases that could be considered sexual in anyway. That was a source of some conflict from the beginning, even though the phrase was completely innocuous.
2) Encourage people to take the issue seriously but not personally. This was where the problem largely was. Some people were found to be trying to make jokes to get rid of discomfort, and others took this personally. Not a good situation.
3) Set up a forum of some sort to make discussion easier. Professor Godsey uses TWEN, but any such bulletin board could be helpful. A moderated bulletin board may allow people to be more open with opinions that may be off the class plan.
'if the GIRL does this' 'if the GIRL says that' 'if the MAN and the GIRL'
I like the idea of using mother and father just because it's not about GIRLS, and it's supposed to be gross and not sexy! It really sounded like they were sounding out scenarios for how they could have sex withough being overy concerned about mutual consent.
I also so much second the idea that men should identify with the experience of the victim somehow. Really from that class you would think that only GIRLS were ever raped. I was talking with a guy (from a different class) about someone in our class whom he thought was gay because in the context of a class on MacKinnon mentioned that he could be raped. I said to my friend, well, you could be raped too. "But that would be so humiliating!" he said. Like it's not so bad for women or gay men to be raped....
In that class (which is not criminal law but more philosophy oriented) we had read MacKinnon's article about how law sees through the eyes of men, illustrated by rape law. Could you assign that? It's not long.
As a current practitioner of criminal law (for the government), I think one of the most interesting (and least discussed) issues regarding all forms of rape, especially acquanitance rape, is recanted testimony and how that relates to a successful prosecution (or defense). Of course, this doesn't go straight to an "elementary" approach that is often taught in law schools, but it is practical. I think recanted tesitmony, and the legal and power relationship issues that go along with it, should be added to any discussion of rape.
I hope you're going to cover false accusations. The large number of men that have been freed from prison using DNA evidence, for instance. The motives for false accusations are interesting - I remember hearing that the most common reason was to explain consensual sex to family members or a partner. Cases where the accuser has a history of making false accusations. Profit motives for false accusations. Revenge motives for false accusations. Family members trying to classify consensual sex as rape and making false accusations based on that.
As a retributionist, it would be interesting to hear your take on how criminals guilty of making false rape accusations would be punished. (Especially if the criminal was initially successful in convincing people that the false accusation was valid.) One wonders what kind of pain, suffering, incapacitation, and the like you would advocate being inflicted on these types of criminals.
I hope you are giving a lot of coverage to organized crime as well. (Like people with ties to organized crime making false accusations.) Be sure to cover non-traditional organized crime groups - like unions, corrupt police, corrupt politicians, church or fraternal groups, political groups, etc.
Also, please be sure to cover the doctrine of extrinsic fraud and the possibility of it being used by organized crime, to fix criminal cases, etc.
My advice: (1) Do NOT skip the topic! (2) No "cold calls" and don't take volunteers either. You don't want the class to become a therapy session. (3) Advise in advance when the lecture will be, and make it one time that you absolutely stick to your lecture schedule! If you have a class of 100, at least 20 will have survived some sort of sexual abuse, and some survivors will be males. Each will deal with the lecture in his/her own way, but (I repeat) you do NOT want the class to become a therapy session!
The biggest danger, it seems to me, comes when people's empirical assumptions are questioned (e.g. What percentage of rapes are acquaintance rapes? How often are cases prosecuted based upon false accusations?) It seems to me that it should be possible to address the subject with a light touch - for example, by using it as a vehicle to discuss concepts of objective and subjective intent - without dipping a toe into these controversial waters.
I attended Chicago in between the early 1990s incident and when Tracey Meares taught Crim, and while Dan Kahan handled the topic sensitively, I'm somewhat of the opinion that it need not be taught at all. After all, few in the class will ever practice criminal law at all, let alone prosecute/defend sex crimes, and the lessons to be drawn regarding victim's intent, accuser's intent and levels of force can, generally, be taught through exploration of other crimes.
I didn't learn the elements of burglary until I studied it for the Bar Exam. So why teach this, *especially* given the possibility of discomfort for both faculty and students?
To answer the question of "how should I teach rape law?", figure out why you're teaching it in the first place.
One thing I'll add is that Rape is a particularly good area of law to engage in a comparative statutory analysis. Since Criminal Law is one of the only (maybe the only) first year course where statutory law comes in substantially, Rape law may well be one of the better places to give first years an introduction to nitty-gritty statutory analysis. Bernard Harcourt did a pretty good job of this with both rape and murder statutes.
Nick
In light of the sensitivity of your approach, one thing you might consider in introducing the subject is to identify it in advance and offer students wishing an opportunity to inform you privately, on a blind basis or not, of any personal experience that would cause them to have difficulty participating in the sort of discussion you hope to inspire.
This might help you develop the discussion in a way that is informed by the student experience without putting any student on the spot publicly or privately. The fact that students know that you are planning a discussion that takes into account personal experiences from fellow students might contribute to the sensitivity of the public comments during class. You might distribute a blank form in advance of class inviting anyone who wishes to submit a concern to do so anonymously or otherwise, student choice.
Just a thought in reaction to the invitation to comment.
Second, I think you should also consider that men may also have been rape victims, and that some estimate the incidence of male rape as higher than female, largely because of prison rape. One "trick" I have used effectively is to take the facts of a rape case in the book, and either present them myself but making the victim male, or asking a macho-looking male student to recite the facts, and then switch the victim to a male with him and see how he, and the class reacts. Done lightly and with some good humor, this has worked well to get the male students focussed on the violent and violative nature of the crime.
Third, I always mention, in the weeks leading up to rape, that we will be doing it, and briefly discuss how difficult it may be for some, or for all, for various reasons. This is "desensitizing," I think.
Fourth, I don't call it "rape," I call it "rape and sexual assault." The fact is, today's statutes and cases that we study are often more foccussed on the latter category than the classic former category.
I use the Saltzburg, Diamond casebook, which I think presents the subject with great sensitivity and some humor, always a nice combo. Professor Kit Kinports (a woman) is responsible for the Rape chapter in that book, I think, and she has done a great job.
Hope this helps. Would love to hear how it goes. Best, -- Rory
The difficult and important issues in rape law don't come from the most violent, obvious cases, where a man seizes a woman off the street and violates her. They come from two people on a date, or two friends having a drink together, or two people in a setting where easy sex is common (party, bar) etc. The (female) victim has probably consented to sex with a man before, and may have either 1)consented to sex with the perpetrator on a previous occasion, or 2) have been considering consenting on this occasion, or 3) have intended to consent at one point (when entering the perp's apartment) only to change her mind later, or 4) have attempted to deny consent, only to be (possibly reasonably, possibly not) misunderstood.
Since none of these things is a realistic possibility for the majority of men when considering themselves being raped, it isn't clear to me that discussing that example at length will deepen most men's understanding of the difficulties of rape law. I think it might be a waste of time for that reason.
You do have tenure don't you?
Isn't it going a bit far to coddle 22+-year-olds who've spent their whole lives saturated by sex, violence, and commie politics?
I survived a straight discussion in 1973-74 back when husbands couldn't even (directly) rape their wives.
Tell anyone who's concerned about rape to carry a Colt Mark IV Government Model .45. It will reduce their risk.
But rape is also a good area to get into the policy analysis aspects - specific and general deterrence, restitution, retribution. Because rape is an area where the legal system doesn't function well. Few, 1%?, rapes result in convictions, and convictions aren't clearly a win for society or the victim, and prison rape suggests the government is often complicit to some extent.
It's a chance to contrast criminal and civil law and ADR techniques, and look at societies in which rape is rare versus those where it the norm.
Also, a pet peeve: violating age of consent laws may be illegal, but it is important to distinguish between rape as a legal term of art and its meaning in plain english.
How you teach the class could have to do with your goals -
are you focused on prepping for the tough cal bar exam, or in teaching skill sets to be used for solving problems for future clients? I got more out of the domestic violence clinic i took than from crimlaw - more real world useful tactics. But then i wasn't worried about the bar exam.
(2) Tell students to understand that the odds are someone in the class has been a victim of rape;
(3) Ask students to raise their hand if they think rape is a problem;
(4) With everyone's hands up, tell them that as future lawyers they need to think about and discuss the legal problems of the day, no matter how uncomfortable they might be, and that as future lawyers they need to develop a thick skin to views with which they disagree and to respond with reasoned arguments, and that as future judges they better be able to confront tough issues with dispassioned judgment;
(5) Pose at least one hypothetical with a man as the victim (if people snicker, then ask them to raise their hands if they think prison rape is a problem; then lead a discussion about that issue, especially since there will likely be some hands that are left down);
(6) Be careful to direct people away from personalizing the discussion - try to preface the discussion by asking people not to personalize - someone talking about their own experience is the surest way to have the class silenced.
I also suggest doing and saying nothing until the lawyer for each party arrives.
Let's submit a brief for the right to date counsel to the Supreme Court on a garbage bag.
As for the class dynamic, it will depend on the individuals. Since most people aren't pro-rape, the students likely will err on the safe side of either not talking at all or "lock-em up, throw away the key" comments. The key to a good discussion will be whether one or two people are brave enough to take unpopular positions and discuss them. If the class has a website or discussion forum, using the Internet may be another way to allow students to contribute who might not otherwise. At the end of the day, this is criminal law we're dealing with: it's not pretty and it can be uncomfortable, but to handle it with kid gloves (letting people leave, etc) is a disservice to the future legislators, DA's, public defenders, victim's rights advocates, etc.
It summarizes a subject catastrophically beset by high rates of false negatives and false positives. This results from mismanagement of victim and perpetrator by the lawyer. Public goes unprotected, innocent defendant goes to prison.
As Shakespeare said, the first thing we do, let's fire all the lawyers. This bungling and vacuum of policy leadership is evident in most areas of crime. It suits the lawyer for jobs. Bright people acting stupid, it's got to be intentional.
Duncan wrote, "Tell anyone who's concerned about rape to carry a Colt Mark IV Government Model .45. It will reduce their risk."
You do NOT want to go there or present that attitude, because you may not be prepared for the response that it would get. I noted above that I had to leave the classroom and hide in the bathroom for "deep breathing." Now, if my professor's attitude had been as stupid as Duncan's, I might have held my ground and offered an argument: Would the professor REALLY have wanted to respond to a comment such as, "I was raped in my own bedroom by my own husband. That's what compelled me to law school. I don't usually have a Colt with me when I walk out of the shower."
Yes, I would have regreted having revealed that much about myself, but the professor likely would have regreted having mishandled the class.
Most law school professors have had fairly priviledged lives. Don't be foolish enough to imagine that all of your law students will have had the same.
I've no doubt that Eugene will handle the topic well and with thought. It is a topic that MUST be handled, directly. It's a basic first-year topic, and students must learn that each element of the crime must be proven, the standard of proof, where to look to find the law for a particular state, the Model Code, etc. HOWEVER, it's a topic that should NOT be turned into a therapy session. No professor can possibly know whether there is a student sitting in the class who is dealing with having survived rape quite recently.
And, the idea of privately getting a note to the professor saying, "Don't call on me because I was raped," is an inane idea! You'll have some non-survivors who will see it as a "free day" and give you a "gee, I was raped" note. And you'll have some survivors who would NEVER consider letting you know they were survivors.
Handle the topic objectively. Give notice in advance that you will be handling it. Have NO "cold calls" in the class, and call on only the more sensitive, trustable, predictable students if you opt for any class discussion. And, above all, do NOT let the class turn into some sort of therapy session. You are a lawyer and a law professor; you are not a therapist.
To avoid the poor performance described by Anonymous Law Student at the UCLA review session, give more frequent Multistate Bar Exam style question quizzes during the year, e.g. after each subject. These test fine line, hornbook distinctions. They may be characterized as devilish. One may read the answer, a lengthy, detailed explanation of why it is correct and the other choices wrong. One will still not get it. That feeling, "I am a moron," makes for a better student. PMBR MBE books are on sale cheap on ebay.
Then give multiple essay exams throughout the year. You can make them count for a small part of the grade relative to the Final, but make them count.
A class action suit is needed against the State Bars, for their bogus, anti-scientific, lawlessly discriminatory exams. These are so out of the mainstream of test making standards, reading their own expert report should result in a quick settlement offer. No one agrees. So be it.
Slacker, bonehead, law professors might consider something really different, a little work, teaching. What time is it, professor? What time do you think it is? What makes you say that? What defenses? Hey, have a blessed day, professor, sorry to have bothered you.
Testing and correcting. What a concept.
Anyway. He first
A) made a joke (he was a very funny prof) then
B) made the disclaimer that because of the subject matter of the day - and (well a lot of what was in the org post) -- he used humor to deal with teaching this.
C) that he was teaching this BECAUSE it was important -
D) then - he told a story that while he was a DA he had to defend some poor Black teens who were accused of raping some rich white girls. Turns out that they were all really bright kids - but after one of the girls got.. with child, she claimed rape (one of her friends finally admitted that everything was, after some drugs and beers - concented to) ...
E) so. We went into what was a largely orderly non-emotional disussion about the rights of the victim vrs the rights of the acused... what weight can we/should we put on a he said/she said crime. Why that is different from other crimes.
All in all - it was a somber day - but well worth the unease we all felt.
If you treat rape any differently from any other crime, you open the door to other hypersensitive, irrational students demanding that you alter your teaching to ensure that they are not bruised by the realities of the world.
An approach that might be helpful to defuse the issue a little would be to focus on the evidentiary problems surrounding rape in terms of commonalities with other crimes -- are there non-rape circumstances where the evidence is likely to be limited to the accuser's testimony and the defendant's denials? (muggings, assaults). How are those cases handled and what are the issues involved? I wouldn't necessarily not cold-call, although I would warn people of the topic, explicitly allow them to skip class, and explicitly allow anyone cold-called to pass if they don't wish to speak on the subject.
I think most of the suggestions regarding efforts to make everybody comfortable will instead just send the message to everyone that frank or controversial opinions are unwelcome.
God, aren't there any grownups left anymore?