Bench Memos

“Rape Exceptionalism”

That’s the term that Harvard law professor Jeannie Suk uses, in this New Yorker essay, to describe the growing phenomenon of “allow[ing] fears of inflicting or re-inflicting trauma [on victims of rape and sexual assault] to justify foregoing usual procedures and practices of truth-seeking.”

Suk, I’m pleased to note, cogently criticizes this phenomenon. She is also one of the 28 Harvard law school faculty members who signed this letter two months ago that objects to the new university-wide policy on sexual harassment and violence that the Obama administration extracted from Harvard.

Here are excerpts from her essay:

[M]y experience at Harvard over the past couple of years tells me that the environment for teaching rape law and other subjects involving gender and violence is changing. Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor. 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. Some students have even suggested that rape law should not be taught because of its potential to cause distress….

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.

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