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December 19 2014

Law Students: We Can't Study Rape Law Because It Might Traumatize Us

Charlotte Hays

Quote of the Day:

Imagine a medical student who is training to be a surgeon but who fears that he’ll become distressed if he sees or handles blood. What should his instructors do? Criminal-law teachers face a similar question with law students who are afraid to study rape law.

--Harvard Law prof Jeannie Suk in The New Yorker

Yes, it seems that law school students are now too sensitive to learn about rape law and indeed some have asked that rape law courses carry a trigger warning.

Even having rape law widely taught was a feminist victory. Rape law was neglected before “hard fought” feminist battles won it a place in the curriculum, according to Harvard Law professor Jeannie Suk, whose fascinating New Yorker article “The Trouble with Teaching Rap Law” is today’s must read.

Suk recalls that in the nineteen-seventies and eighties feminists put forward the idea that the treatment of rape complainants all too often amounted to a “second rape.” This has had a profound effect on the way rape is viewed on campus:

Disbelieving a complainant’s account, questioning her role in the interaction, and not vindicating her claim also all came to be seen as potential re-victimizations. On college campuses, the notion that a complainant should not have to see the accused, because it would inflict further trauma, is now commonplace.

But now, extending this notion, many law students are claiming that an academic course about rape law traumatizes them:

Something similar to the “second rape” concept now appears to be influencing the way we think about the classroom. I first encountered this more than a year ago, when I showed “Capturing the Friedmans,” an acclaimed documentary about a criminal-sex-abuse investigation, to my law students. Some students complained that I should have given them a “trigger warning” beforehand; others suggested that I shouldn’t have shown the film at all.

At a time when some law students are saying that they can’t even face studying about rape, we are grappling with the very definition of rape. Feminists have waged and largely won a campaign to redefine rape so that sexual encounters that were once not considered rape now are.

In fact, Ashe Schow had a buzz-generating article in the Examiner this week saying that we are now defining nearly all sex as rape. Schow wrote:

California’s “yes means yes” law turns the idea of sexual consent upside down. Suddenly, nearly all sex is rape, unless no person involved reports it as such.

Given that definitions are shifting, legal scholars and lawyers (and the rest of us!) must be able equipped to engage in analytical discussions about rape and sexual assault. Suk writes:

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.

Suk was one of the 28 Harvard Law professors, many of them renowned liberals, who signed an open letter objecting to new guidelines on handling of rape accusations on the grounds that the rights of the accused are not protected. She takes note of these new guidelines, similar to those at many universities, and the recent Rolling Stone story about a gang rape that appears at this state to have been fabricated:

These events are unfortunately of a piece with a growing rape exceptionalism, which allows fears of inflicting or re-inflicting trauma to justify foregoing usual procedures and practices of truth-seeking.

The Obama administration, which has promoted a widely-debunked (most recently by its own Department of Justice) figure that one in five women on campus is a victim of rape, bears no small part the responsibility for the current atmosphere.



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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