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Teaching the Law of Rape:

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.

washerdreyer (mail) (www):
The first thing I was assigned in our unit on rape law was Susan Estrich's Teaching Rape Law (102 Yale L.J. 509). This did a great job of setting tone and getting us (the students) into a mindset conducive for the discussion.
3.31.2005 7:19pm
Texas litigator (mail):
I took criminal law from Susan Klein, a former federal prosecutor, at the University of Texas School of Law.

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.
3.31.2005 7:21pm
Goober (mail):
I'm not being entirely coy when I say the best advice is "don't." It doesn't get less emotional; it doesn't inspire less self-censorship. But if you must, remember that not everyone will instantly get the difference of reasons to disapprove of behavior and reasons to imprison. Jack Coffee made frequent use of the term "atomic bomb of a twenty-year term"; you might invite a comparison of rape law and, say, sexual harassment law to discuss what makes something properly punishable. (Nothing against Jack Coffee, as I loved him, but for some reason the class didn't respond to his introduction of fraud-in-the-inducement with the wonderful old hit, 'Will You Still Love Me Tomorrow?')

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.
3.31.2005 7:31pm
Chicago Law:
Interesting you should raise this. In 1990-91, U Chicago Law was hit by a pseudo-scandal when some women were offended by remarks made by Richard Epstein about this very subject in a criminal law class. The school resolved the dispute by having the leaders of the protests designate women to lead this section of the class in 1991-92.
3.31.2005 7:37pm
T. Gracchus (mail):
When I taught philosophy of law I often based the course on a criminal law casebook and included sections on rape. I found it helpful to begin that particular section by talking about the personal aspects of the crime -- that there were victims in the class and that, depending on what one understood rape to be, there were also perpetrators in the class. I asked the students to consider these facts and to take them into account as they moved through the material. I also found it helpful to focus on philosophical rather than sociological issues. The discussion of the former will pull in the latter, but it was never helpful to start with the sociology of rape or sex and violence. The final thing that seemed helpful to me was to tie pieces of the disucssion of rape to related or analogous pieces of other crime.
3.31.2005 7:40pm
Tom Sylvester (mail) (www):
Don't cold call during those classes. And don't be surprised if a few people miss class that week.
3.31.2005 7:53pm
M. Richardson (mail):
I haven't had classes on this, nor experience as victim or perpetrator. But, looking at your proposed dichotomy of "asking students to imagine the victim being their daughter, and the accused being their son," what about--instead of, or afterward--"asking students to imagine the victim being their mother, and the accused being their father"? Because inviting the personal might be even better--and more surprisingly--evoked by introducing this unexpected potential involvement of the older and present generation.
3.31.2005 7:54pm
chicagoenne:
When I took criminal law with Tracy Meares a few years ago, I thought she did a great job with the rape section. Some of it had to do with the tone she had already set with her classroom style: unfailingly friendly but professional--didn't create a confessional, emotional atmosphere, but nevertheless made everyone relatively comfortable. We were there to learn the law like the professionals we were going to be.

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.
3.31.2005 8:30pm
Armen (mail) (www):
I initially wanted to write a slightly long comment, but instead chose to turn it into a post at <a rel="nofollow" href="http://www.blogdenovo.org/archives/000796.html">De Novo</a>. Briefly, our crim law prof used small discussion sections moderated by TAs to cover various topics within the law of rape. Because of this was a small group and the professor was present to necessarily agree or disagree with the comments, it allowed greater freedom for the students to express themselves. Again, I apologize for linking elsewhere, but it's a Thursday night.
3.31.2005 8:36pm
Andy Treese (mail):
My opinion follows, but keep in mind I have a different perspective than traditional 1Ls: I've been a police office for eight years, I'm a 1L/2P at Georgia State University, and I have some experience instructing and teaching cops, but it's not what I do for a living.

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.
3.31.2005 8:45pm
DRJ (mail):
I have very little to add, because I was in law school so long ago that we barely discussed rape laws, or maybe I'm so old that I don't even remember it. But ... it seems to me that it would be better to use brothers and sisters as your examples, instead of sons/daughers or fathers/mothers. Many law students are too young to have children yet, and thus I don't think they would bring an emotional investment to that scenario. Similarly, using fathers/mothers as the examples would elicit a response like "gross", or at least it would in my teenagers and young adults.

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.
3.31.2005 9:14pm
sbw (mail) (www):
Read David Denby's Great Books chapter on Simone De Beauvoir for a healthy view on issues of rape and sexuality. The right to say "no" is as sacrosanct as the right to say "yes". It tends to cut through the cant.
3.31.2005 9:15pm
Northwestern:
I agree with Tom Sylvester's post. Last semester I remember feeling uneasy at the prospect of being called on to recite the facts and holding of a rape case. Though, what made me feel worse was finding out that rape would not be a legal topic we would discuss. As a woman with personal experience with sexual assault, I'd say the only thing worse than poorly covering the topic is not covering it at all. I appreciate your sensitivity and interest in teaching this subject well.
3.31.2005 9:26pm
Robert Lyman (mail) (www):
I took Crim from Anne Coughlin (UVa), and we talked about only rape and homicide, with a very heavy emphasis on rape. Perhaps because of the fact that we were discussing it for the better part of a semester, it never struck me as particularly emotionally fraught or tense. Obviously there are some sensitive issues, but we discussed them without acrimony, at least as far as I recall.

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.
3.31.2005 9:36pm
Pierce T. Wetter III (mail) (www):

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.
3.31.2005 10:38pm
Katherine (mail):
1. I would also encourage people to think of this as a crime in a criminal law class, and to think of it as much as possible like other equally serious crimes as possible. This means treating the victim/accuser with as much respect as in other crimes, AND being equally concerned about wrongful convictions as in other crimes.

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.
3.31.2005 10:50pm
Stephen Aslett (mail):
I took criminal law last semester from Prof. Robert Force at Tulane. After murder, rape was our most heavily studied crime.

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.
3.31.2005 10:52pm
DNL (mail):
I agree with the earlier poster who said "as usual, minus cold calling." Don't treat it as extra-sensitive.

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.
3.31.2005 11:12pm
ixroby (mail):
A potent problem is that many or most men have never bothered to see the issues of rape/consent/"provocation" from the perspective of the woman. They have simply never played a social role even close to that of a woman. The most effective method for me as a student was the use of hypotheticals that converted the case and allowed the male to see the female point of view.

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.
3.31.2005 11:13pm
Daniel San (mail):
I don't see much benefit in "imagine the victim (or the perp) is your _____." I think the point of teaching criminal law is to get away from emotionalism and 'good policy' and teach law as it is.

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).
3.31.2005 11:22pm
IBH:
I remember a controvery in the late eighties at Stanford Law School after a criminal law exam included a hypothetical issue-spotting question describing a rape. I would stick to actual cases to make points, rather than making up hypotheticals. The constant sobering reminder that real cases happen might keep students focused on why the class needs to address these difficult subjects.
3.31.2005 11:26pm
matt:
My Crim Law Prof. approached this in mostly the same way he approached every other section. Starting by examing the MPC sections, discussing a case, comparing the case's statute and the MPC, discussing Hypos, contrasting different results based on whether MPC or statute in question was applied - in general, just looking at it from a very formuliac, unemotional point of view. Cold calling was used as was normal, volunteering was slightly lower than was normal for the class - but not by too much. There were no overly emotional responses or people becoming upset. I think it went pretty well.

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.
4.1.2005 12:09am
DavidR:
Like Mr. Aslett (above, whom I don't know), I had Professor Force for crim law. I was distracted because whenever he said "sex by force," I thought he was saying "sex by Force." I kept picturing him raping people.
4.1.2005 12:32am
Cornellian (mail):
I took Criminal Law here at Cornell last year, and for that subject alone the prof didn't cold call anyone. Then at the end of the semester when he was talking about the exam, he said that it was not his habit to examine on that subject, so that if we were looking to save time on studying, that would be one area to eliminate.
4.1.2005 12:36am
Jerry Huling (mail):
As an ex-police officer, it is worth pointing out that the vast majority of reported rapes are cleared as "unfounded." Female arrestees often - at least once a month in a major police organization - claim the arresting officer raped them on the way to the station! Consult Eric Berne's book: "Games People Play" for the conditions governing the game "Rapo," 3rd degree.

A high percentage, at least more than half, of all rapes have as the victim, a male. Think prisons.
4.1.2005 12:38am
Cardinal:
My Professor split the Rape material. Near the beginning of the course, when we were getting grounded in Mens Rea, he used it to test the line between recklessness (Alaska), negligence, and strict liability.

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.
4.1.2005 1:06am
TMH:
This is probably NOT the subject through which you'll want to introduce your students to Posner or Becker!

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.
4.1.2005 1:17am
allwrits (mail):
Hauling hit on a great idea, if quite by accident. Would it cure your squeamishness if you started the subject not with a male/female issue, but with prisoner rape. On the one hand you avoid the problems that many male professors accidentally fall into, going too far in teh subject of sex vs. rape. On the other hand you examine a very timely and poignant subject, prison rape.
4.1.2005 1:38am
Bill Mullins:
I believe the science fiction author Robert Heinlein once wrote that because the process of proving rape is so onerous to the victim, on average, the victim is better off pressing charges of Indecent Exposure -- the average sentence on the perpetrator is higher that way.
4.1.2005 1:45am
Marvin Simons (mail):
I remember our criminal law professor at Boalt in 1979-80 brought up a hypothetical about "rape games," where the parties agree in advance to pretend. The mood in the room really got frigid, and the professor was obviously very uncomfortable also.
4.1.2005 1:55am
Gus:
Having recently finished the first half of my 1L CrimLaw experience, and in consideration of the above comments, I would recommend spending either substantial or minimal time on the subject. My preference, being in a class that spends roughly a quarter of its time on rape, would be substantial time, as I am glad that we did cover it (it is a fascinating -- and difficult -- area of law).

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.
4.1.2005 2:21am
E. Shen (mail):
The most notable experience I had when Judge Lynch taught the subject was that during a particular case with a relatively unique factual scenario, the discussion was dominated by a select number of students. Judge Lynch spent much time analyzing their position, and discussion continued like this for the majority of the class period. Near the end, a different student voiced his opinion that the situation was not as the dominant speakers thought. Lynch asked for a vote, and the overwhelming majority (I'd say 95%) agreed with this last student.

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.
4.1.2005 3:00am
Chris F. (mail):
I actually did this section no more than a month ago in Professor Mark Godsey's Crim Law class at Cincinnati. It was definitely as emotionally charged as you worry about, and I saw a few friends yell at each other. My suggestions:

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.
4.1.2005 3:09am
Tara:
When we did this in an undergrad class it drove me crazy that men would start their sentences -

'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.
4.1.2005 8:22am
KW (mail):
Agreed on the exam part. Our crim law section had a major meltdown due to a perceived insensitive exam, which followed a semester of what seemed like gratuitously lecherous examination of rape (let's talk about no meaning yes again, class).
4.1.2005 8:29am
Escaped ChicagoLaw:
I was a student of crim law during the special section of women students who taught rape law during Schulhofer's class in '91-'92. It was arguably the worst instance of academic pressure group politics I was subjected to at law school. It was driven by some feminist 'activists' who learned that they could get people to do things by feigning that they had taken offense. I am sure that professors are better teachers than activist students, and I am sure that if professors just keep it bloodless and doctrinal then their teaching the law of rape will work out fine.
4.1.2005 8:55am
JBW:
I agree with those who said don't cold call. My prof allowed student to opt out of being on call with no questions asked. Everyone who stays in is fair game. Just be on the look out for the student who is somewhat insensitive with the points he's making. Try to defuse those situations before they're too heated.
4.1.2005 9:44am
Belchfire (mail):
Keep it professional, but not bloodless. Being exposed to the attitudes of the victims, the accused, and my fellow students was very educational. As I read the cases, I kept thinking, "what was he/she thinking?" Of course, he or she wasn't thinking, and it reminded me that the best way to deter crime may not be to merely write a better criminal statute.
4.1.2005 9:49am
Decarsu (mail):
About the closest my 1L criminal law class came to discussing rape was an old "buggery" case. The professor sort of smiled when talking about the issue, and the whole class all uncomfortably laughed throughout the discussion at this Southern law school. It was not very helpful at all to a meaningful discussion of the legal issues surrounging the crime of rape.

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.
4.1.2005 10:46am
multipleconsents (mail):
The CrimLaw class I attended just went through the elements just like the other statutes.

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.
4.1.2005 11:46am
Michigan grad:
I think the fact that you are sensitive to these issues goes a long way. But realize that, no matter how well you try to deal with the emotions of the issues, it will be difficult for people to deal with. When I took Crim Law at Michigan, a female student who had been raped ran out of the lecture hall crying. Later, a male volunteer made some comments that were perceived as insensitive. The classroom environment was exceedingly uncomfortable. From the professor's perspective, this topic must have been a disaster. But let me give you some reassurance, as well: I think I learned more from my classmates than professors in law school (*s*), and I particularly recall the in-depth discussions on the subject of rape that came up during the weekend that followed our class. Those discussions opened my eyes to issues that I had never before considered. What should you come away with out of my post? (1) Warn people ahead of time (allowing folks to be absent is also an option); (2) no matter how well you prepare, things can take a turn for the worse; (3) even if things go wrong in class, at least take comfort in the fact that, merely by having the different topics associated with the law of rape raised in class, you are opening up a dialogue amongst your students that will be beneficial; and (4) you law profs aren't as important as you think you are (heh, heh, heh).
4.1.2005 12:06pm
Private (mail):
I was a professor's worst nightmare when rape was taught: I am an abuse survivor and a rape survivor. No professor would have guessed it by my appearance or by my conduct. The professor announced at the start of class that he would handle the class differently because of the topic, and there would be no "cold calls." He began his lecture with a clinical, legal definition of rape. The definition was so clinical and so exactly legal that I had to rush out of the class so that I did not freak out in the classroom. I went to the nearest bathroom, hid in a stall, and practiced my breathing to calm myself so that I could return to the class. Fortunately, I had been seated at the end of a row, and near a door, so my rush to leave was not disruptive. And, wisely, the professor never spoke to me about my dashing out of the class and being gone for ten minutes.

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!

4.1.2005 12:24pm
Steve:
An interesting essay is James J. Tomkovicz, On Teaching Rape: Reasons, Risks, and Rewards, 102 Yale L.J. 481 (Nov. 1992). I was actually a student in the class which Prof. Tomkovicz describes in the essay.

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.
4.1.2005 12:27pm
Anon (mail) (www):
First off, I'd heard of these mythical law schools where rape law isn't taught, but I've never seen concrete evidence of it. Is it true?

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.
4.1.2005 12:49pm
Michael Martin:
I'll echo the comments of some earlier posters that in my experience at the Unviersity of Chicago last year, it seemed that most students came prepared to deal with a tough emotional subject in as dispassionate a way as possible. The professor's ethos probably decides most of whether the class stays professional in tone after that.

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.
4.1.2005 12:54pm
NickM (mail) (www):
I believe people are generally less likely to react sensitively to the topic in the context of a real case, because they are less likely to imagine the matter happening to someone they know or themselves. The Kobe Bryant case is one tht many students will already have some familiarity with, and should be able to discuss while remaining emotionally "at a distance". It also contains issues which blanket many of the important legal questions in rape law (rape shield, circumstances of reporting, sexual history, consent to certain activities, resistance, force, conflicting testimony, motivation to lie, et al.).

Nick
4.1.2005 12:55pm
Robert Sheridan (mail):
I prosecuted many sexual assault cases to juries. When told what the case they had been summoned for was generally about, i.e., "This a charge of rape," at the beginning of voir dire, to see whether anyone could not serve because of the nature of the case, often a prospective juror would raise a hand. The practice was to offer the opportunity to discuss in chambers, but often the person would say publicly that he or she had had a personal experience that would make it difficult to render a fair verdict. Sometimes she (usually it would be a she, but not necessarily, of course) would publicly state that she'd in fact been raped, or someone close to her. The prospective juror would be thanked and excused for cause.

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.
4.1.2005 1:49pm
Joe (mail):
Unfortunately I don't remember the textbook or the article, but my rape unit was prefaced by an excerpt from an article written by a liberal-leaning female public defender, explaining the conflict she felt in having strong personal feelings in support of both defendants' rights and rape victims' rights. When legal issues have obvious political implications, I often found myself adopting the legal opinion I thought I was supposed to take according to my ideology. Some of the most useful experiences in law school were those that showed the ambiguity in figuring out what the "right" position is. I think reading that article put me in the right mindset to evenhandedly evaluate various issues that arise in studying rape. That said, its still going to be an issue that stirs strong feelings.
4.1.2005 1:56pm
Rory Little (mail):
Gene, I've always taught rape in first year crim, despite advice not to from some. First, Kate Bloch here published an interesting article presenting a "legislative model" (students draft their own model statute), "A Rape Law Pedogogy,"7 Yale Journal of Law &Feminism 307 (1995). Kate is a former prosecutor and not a particularly radical feminist and she is wildly popular and effective here.
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
4.1.2005 2:30pm
Robert Lyman (mail):
A number of commenters have suggested discussing thee rape of men. While I think that the rape of men is important and rates a mention, it's not clear to me that it is an effective way of getting students to think about rape. For most men, any sexual encounter with another man would have to be rape--they wouldn't even consider consenting, and would find it fairly easy to satisfy the "utmost resistence" requirement.

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.
4.1.2005 2:53pm
Duncan Frissell (mail):
I don't suppose you can just say, "If you're not grown up enough or tough enough to handle this subject you don't belong in law school."

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.
4.1.2005 3:25pm
arbitraryaardvark (mail):
I'm assuming you cover homicide first? I would tend to suggest covering assault/battery before moving on to rape. That provides a framework - mcp, common law, california, case analysis, which helps avoid emotionalism getting out of hand.
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.
4.1.2005 7:44pm
yale (mail):
In my class we talked a lot about what consent is (including a case where a man told some young men his wife wanted the young men to 'force' her to have sex with the young men and in reality the wife knew nothing about it) and we talked about what the unique wrong in rape was (as opposed to punching someone, for example.) Nobody acted weird or uncomfortable. Rape is a serious legal and philosophical topic. Future lawyers and citizens should be prepared to confront it seriously. You should have the discussion in full force and just let people who cannot deal with it skip class. If law students cannot confront the issue, how can the citizenry when they have to make choices about the justice of the laws and procedures governing rape?
4.1.2005 8:10pm
yale (mail):
In my class we talked a lot about what consent is (including a case where a man told some young men his wife wanted the young men to 'force' her to have sex with the young men and in reality the wife knew nothing about it) and we talked about what the unique wrong in rape was (as opposed to punching someone, for example.) Nobody acted weird or uncomfortable. Rape is a serious legal and philosophical topic. Future lawyers and citizens should be prepared to confront it seriously. You should have the discussion in full force and just let people who cannot deal with it skip class. If law students cannot confront the issue, how can the citizenry when they have to make choices about the justice of the laws and procedures governing rape?
4.1.2005 8:10pm
chris (mail):
(1) Be forthcoming about your quandary;

(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.
4.1.2005 8:29pm
RH:
(1) Avoid any attempt at humor. (2) I agree with the comments about being very careful with the exam, and about confining questions to real-word situations. My crim exam ended with a bizarre hypothetical involving a prostitute and mistaken identity in a public rest room, which offended some people and unsettled many others, without doing very much to probe students' understanding of the law. The bizarre hypothetical has its place in law school instruction, but this is not the place for it.
4.1.2005 8:38pm
SupremacyClaus (mail):
Eugene: This distinguished prof proposes to Mirandize the backseat encounter. He is at the ALI, the future of law for all of us.

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.
4.1.2005 9:48pm
Walt (mail) (www):
Warn the class what's coming a week or two in advance. Announce that you'd like to talk with any rape victims privately before the class comes up, if they wouudn't mind When they show up, and they will, give them a chance to opt out, tell them you have to cover the subject but you will try to be as sensitive as you can. They need to hear that they will not be "outed," unless they choose to do so themselves. There is a good chance they will help you in the class presentation and discussions.
4.2.2005 12:52am
Colorado (mail):
Having attended the University of Colorado Law School, this subject clearly had explosive potential given the allegations against the football team and the Bryant matter. However, our Professor dealt with the subject in a very academic and respectful manner. The material was handled in the traditional case book method, with opportunity for discussion throughout. Our professor would alter facts or create a hypo to generate more discussion and test the contours of the law. The rape materials were treated like all the other crimes.

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.
4.2.2005 1:10am
SupremacyClaus (mail):
A relatively unbiased summary of the scope of the problem from the CDC.

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.
4.2.2005 6:42am
OSU 2L (mail):
My crim law professor handled the subject very well. At the beginning he read a short excerpt from a book/memoir by a rape victim, which eloquently described her sense of physical and psychological violation. That helped me understand rape in a much more profound way - not just a physical intrusion (which is terrible enough), but a removal of a person's autonomy, a stripping away of a person's right to themselves. Afterwards this victim had a permanent realization that she was not entirely in contol of her own personhood, i.e. someone could 'enter into her' without her consent. It's difficult to articulate (and I'm not doing it justice), which is why the memoir was so effective.
4.2.2005 7:25am
Private (mail):
Duncan Frissell's attitude shown in an above post is every rape victim's worst fear. I am the same poster as the "Private" above who acknowledged being an abuse survivor and a rape survivor.

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.
4.2.2005 11:15am
SupremacyClaus (mail):
Law is a foreign language. It is learned by speaking it, not by listening to it.

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.
4.3.2005 7:49am
SupremacyClaus (mail):
Eugene: The above message describes a standard of professional teacher practice. It's from elementary school, at a third the salary.

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.
4.3.2005 10:24am
Shmoo:
I had Crim last fall. The prof did a really good job with it. After having read a few cases on rape and the michigan CSC statutes - most of this reading might have been a turning point for some in what they want to do post law school - (i know my Ex was thinking before this that she was gonna go "defend the innocent" - then she realized that she might have to defend people like... eh. Criminals.

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.
4.4.2005 1:31am
Cheif Many Typos:
My crimlaw prof opened the class telling us that, when he was in law school, the few female students were not allowed in the classroom on the day they covered rape. He then went straight into the lecture, like any other crime. It never appeared to be a touchy issue.
4.4.2005 12:09pm
Lucy Lawmore:
If a college graduate cannot handle a discussion of rape in the same dispassionate, objective manner that he or s.he handles a discussion of exceptions to the hearsay rule or of notice and comment in informal rulemaking, perhaps that student does not have what it takes to belong to the bar. The practice of law is often emotionally-charged, and it is the role of attorneys to be objective counsellors, not hysterical sob-sisters who flee to the powder room or collapse on the fainting couch when a legal issue hits close to home.

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.
4.5.2005 5:26pm
SupremacyClaus (mail):
Lucy: I had to flee to the powder room and was extremely emotionally distrought when reviewing the exceptions to the hearsay rule.
4.5.2005 7:44pm
LizardBreath (mail):
My Crim Law prof skipped rape -- he was both conservative and strongly socially clueless (although in many ways an excellent teacher) teaching a very socially liberal class, and while I wish it had been taught, I can't imagine that this guy particularly could have avoided deeply offending many people. He did manage to be fairly offensive on statutory rape, given the amount of time he spent on the injustice of penalizing a man for being unable to resist the blandishments of a crafty underage girl, determined to trick him into sex with her.

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.
4.7.2005 1:19pm
Spoons (mail):
I think that many here are approaching this the wrong way. If someone can't handle a discussion of rape in the relatively safe environment of the classroom, they'll never be able to deal with it in a courtroom.

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?
4.8.2005 1:15am