Talking About The Law Of Rape

by Michelle Dean

At the New Yorker, Harvard law professor Jeannie Suk writes that it’s getting harder to teach the law of rape on campus. She describes a collision course between her desire to teach the hard cases – ones where the parameters of consent may be tested – and the sensitivities of students. Her list of the particulars is sobering:

Student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class sessions that focus on the law of sexual violence, and which might therefore be traumatic. These organizations also ask criminal-law teachers to warn their classes that the rape-law unit might “trigger” traumatic memories. Individual students often ask teachers not to include the law of rape on exams for fear that the material would cause them to perform less well. One teacher I know was recently asked by a student not to use the word “violate” in class—as in “Does this conduct violate the law?”—because the word was triggering.

It’s worth saying that I bet some of these organizations and students would quibble with Suk’s description of events. The last sounds particularly apocryphal, I have to say, like it’s gotten misdescribed in the re-telling to better fit a stereotype of campus politics. It’s not just sexual assault stories that tend to get molded to fit an agenda.

It’s harder to object, though, to what Suk describes as a growing fear and apprehensiveness about even broaching the subject of rape:

About a dozen new teachers of criminal law at multiple institutions have told me that they are not including rape law in their courses, arguing that it’s not worth the risk of complaints of discomfort by students. Even seasoned teachers of criminal law, at law schools across the country, have confided that they are seriously considering dropping rape law and other topics related to sex and gender violence. Both men and women teachers seem frightened of discussion, because they are afraid of injuring others or being injured themselves.

While obviously I haven’t faintest idea of what’s specifically been going on at Harvard or other American law schools, I believe that this fear is real because I’ve felt it too.

For most of this past year I took a break from writing about sexual violence. I have what I’d call both strong and considered beliefs on the subject. I’ve spent time talking to and working with victims as a law student and an attorney. I’ve also done my time as a writer in the varied and raucous (and often misrepresented) trenches of the “feminist blogosphere.” My knowledge of the subject is neither that of an amateur, nor even the surface investment of a pundit.

It’s long been apparent to me that no side of this debate is right.

Unqualifiedly believing victims without trying to substantiate their claims doesn’t serve them well, but unqualifiedly doubting doesn’t work either. Calling the current state of the prosecution of rape as “truth-seeking” is misdescribing the process, no matter what evidentiary reform is out there. If you want to teach the hard cases in rape law, I think you have to grapple with those questions carefully. I don’t think it can be enough to simply dismiss that entire part of the discussion as the product of oversensitivity.

Even long experience could not rescue me in the public discussion about Woody Allen earlier this year, though. It was some kind of rape rubicon for me. I hated having to address it. It felt like no matter what I wrote, it was “wrong.” I actually switched jobs to get away from the subject.

But what had caused me to despair of the state of conversation is largely, though not entirely, the opposite of what Suk describes. Whenever I wrote about sexual violence I ended up accused of advocating dogma, of being a bad journalist, of creating an atmosphere where “truth-telling” was impossible. I was also, frankly, tired of being stereotyped as a “feminist blogger” merely for addressing it. If I wrote that there was even some small modicum of value in people believing victims of trauma, I was accused of foreclosing all further discussion.

In other words, knees can jerk on every side of aisle.

That isn’t to say that I felt no pressure from the opposite side. I have also become uneasy with the fact that these rape stories were traffic bonanzas for the various places I write for. And I cringed watching people try to react to the dismantling of the Rolling Stone story in real time according to the well-worn treads of this debate.

But then I come back again to nuance. It’s not a simple matter of dishonest clickbaiting, from my vantage. Over the years I have watched lots of friends turn themselves inside-out emotionally to recount their own sexual assaults over and over in op-eds. They do so out of an honest hope to be heard in the yelling that happens whenever these stories come up. But they also do so at the encouragement of editors who, though well-intentioned, also know full well that the traffic returns could be enormous. And I have my own theories about how all of that intersects with what happened at Rolling Stone.

But like most things in life, it’s complicated. The resistance to nuance is general. Literally no one seems to want to have a careful conversation about any of this. We’re just reiterating the same old positions. Believe them. Don’t. The courts are just. The courts are unfair. Ironically everyone is too busy talking to ask: how can we really have a conversation about this?