March 31, 2005

Teaching Rape, the Law anyway

by Armen

Over at the Volokh Conspiracy, Professor Volokh asks readers to offer suggestions about teaching the law of rape in a first year Crim Law class. He echoes the same concerns that my crim law professor expressed, i.e. because the topic can be difficult to teach and because of sensitivities to those in class who may have personal knowledge and/or experiences some professor just don't teach the topic at all.

Rightly Volokh moves past this and asks for advice for what has worked with others. I initially wanted to post this as a comment at VC, but decided to expand it a bit and turn into a post about using small groups during the first year as a whole. Before I describe how Prof. Crim Law approached the topic in our class, I want to add the caveat that I really do not have any frame of reference. I don't know what a crim law class is like without any discussion of rape, and I don't know what it is like if the topic is offered as a lecture/Socratic method discussion. Regardless, the week spent on the law of rape was very unique and quite frankly it's one of the few areas of crim law that I still remember.

To begin with, Prof. Crim Law assigned everyone in the class to a group of 6, which was in turn part of a larger group of 18. This got a bit technical with the larger group identified with a letter and the smaller group identified with a number, but that really depends on how the professor chooses to break up and assign groups. The important thing is that each small group then chose a topic which had a corresponding article or book, e.g. my group topic was the law of marital rape, or the lack thereof. The other two groups within our larger group had to choose something else for obvious reasons.

We then met during three days in our large groups. (More technicality...we met each day for 75 minutes instead of our normal 4-day 50 minute lectures. So for that week, the ABA class time requirement was not altered). Each of the days had its own preassigned topic of discussion and set of readings. The second day, if I remember correctly, was on "no means no" laws. But, the first 15 minutes of each day were spent on a presentation by one of the groups on the topic they had selected. So during those three days we were exposed to about 6 different topics within the law of rape.

The discussions were moderated by upper-classmen hired by Prof. Crim Law to serve as TAs. They had points that the prof wanted them to cover but the discussion generally flowed based on our comments. All in all, I think the discussions brought a lot of the tough issues surrounding the law of rape as a whole and I learned quite a bit from the comments offered by my classmates. Prof. Crim law also took on day to bring in a guest speaker from the San Mateo DA's office who specialized in sex-crimes. And I think we had one day of just reviewing and tieing up loose ends.

The experience was in a sense a more formal version of a study-group. This semester, Prof. Civ Pro took a similar approach with discovery--similar in the sense that we worked in groups to answer questions about a hypothetical lawsuit based on the Fed. R. Civ. P. At the very least this shows room in the first year curriculum for more small group interaction outside the large lecture [now with wireless access]. But I'm not really prepared to offer any suggestions about how this might come into play in other courses.

March 31, 2005 08:29 PM | TrackBack

In the discussions, was there focus on what the testimony might be on the part of the complainant, the defendant, other witnesses, forensic evidence, etc? Many times it's more a matter of he said/she said (or vice versa in this day and age), i.e., the evidence, than the law. This suggests that the students might view rape as fact finders rather than as judges. Attorneys on both sides of the rape case will prepare their witnesses on the "facts" keeping in mind the applicable law. How is rape, then, any different than other crimes for law students? Perhaps it is because students may engage in sexual intercourse and thus have personal experience about one component of the crime of rape whereas these same students have not killed someone nor taken someone's property.

Posted by: Shag from Brookline at April 1, 2005 06:53 AM

The discussions were on the law, i.e. off the top of my head I know that one day we had to read the Berkowitz case and even there the court followed an approach of X,Y, and Z are the facts , now does that constitute rape under PA law? Should it?

As the for the second comment, I think it is a combination of the prevalence of sexual assault (and sex in general) along with the exceptionally private nature of it for any party involved.

Posted by: Armen at April 1, 2005 10:46 AM
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