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From rape law to war crimes: The hardest part of ‘hard subjects’ is teaching them

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Academics and students grapple with trigger warnings and ‘cold calling’

Law is not, and never has been, “about pink happy stuff”, as one law student put it to us. Undergrads, even part way through their degree, will know that studying law can be a rollercoaster ride through the world’s most terrible crimes: from child abuse, discrimination and sexual violence to war crimes and human rights violations.

I recall frank discussions about them all when I was at university; my criminology tutor even asked the class whether anyone had ever been assaulted (and, later on, if anyone had ever been burgled).

That was in my final year in 2014/15. But that was also just moments before, or perhaps at the beginning of, the emergence of what has been termed “the age of trauma”, though others might call it the age of self-entitled, easily-offended millennial snowflakes.

This age of trauma is having real consequences on teaching law: Jeannie Suk Gersen, who teaches crime at top-three global ranking Harvard Law School, reveals some tutors have resorted to taking so-called ‘hard subjects’ out of their classrooms for fear of the harmful effects these discussions may have.

The most archetypal of all hard subjects is rape law and sexual violence.

Ironically, that these topics are actually on Harvard law syllabuses at all is quite a recent development. It’s down to feminist academics such as Susan Estrich, who worked successfully in the 1980s and 1990s to give these subjects more academic exposure. Having been raped before law school, Estrich recounted her frustration in the mid-1970s at not being taught rape law in law school while spending “an eternity” on homicide. Quoting Estrich, Gersen’s paper continues:

“No one would ever suggest that we should skip homicide in those years when we have students who have been touched by it, or skip insanity because some of our students have fought mental illness, or never mention drunk driving because we’re all probably too familiar with that.”

Gersen advocated teaching rape law in a way that squarely confronted hard questions, just like you’d squarely confront torture in human rights classes and warfare in international law. “What I have been fighting for, over these years, is not to give rape special treatment because it happened to me and to so many others, but rather to stop treating it specially,” Estrich said.

So is all this hard work to get rape law onto the syllabus about to be undone?

On the whole, students don’t anticipate being fully sheltered from difficult topics like sexual violence which will no doubt rear their head during a career in legal practice and, well, life. As one told us: “I do agree that students should certainly have the expectation of learning about such topics, as it would be quite foolish not to.”

But what they’re perhaps less prepared for is the pervasive, even omnipresent, nature of these hard topics. While undergraduates may expect discussions about murder in a homicide lecture, in the words of student Giorgia Litwin, the face of the Oxford Law School trigger warnings debate which we will come on to imminently, “when you’re going to a lecture on economic loss, you wouldn’t generally anticipate half of it being dedicated to the Hillsborough tragedy”.

I certainly remember feeling more emotionally challenged in law of evidence and medical law lectures and seminars — where hard topics provide the linchpin to lessons on witness competency, the admissibility of evidence, abortion, euthanasia and more — than I ever did in first-year crime.

These gruelling topics do appear to be seeping more and more into the core of law degree syllabuses. No wonder then, in this age of trauma, that talk has returned to the ever-polarising trigger warnings.

The ‘triggered’ concept has made it to meme culture. Image via Youtube

In May of last year an Oxford law student revealed that aspiring lawyers there are warned before lectures on sexual offences that content could be distressing. This riled Pump Court Chambers’ Matthew Scott, who used his popular Twitter account to throw scorn at “delicate Oxford flowers”.

Litwin hit back, stating these trigger warnings allow “people to make a choice for themselves about what they’re comfortable with and where they want to deal with it”.

Trigger warnings are controversial. There are fears they may be: impractical (given the number of hard topics and their frequency), exploited (by students who use them to miss lectures), unreliable (as teachers cannot gauge for definite what someone may be triggered by), and counter-productive (as they may cause more anxiety and pain than the lecture content would have done).

Gersen, for one, is not sold on the value of trigger warnings. “As one former student of mine, Clara Spera, put it: ‘Entering law school is the trigger warning’”, she firmly concludes.

It’s a view we anticipate will be shared by many of our readers. One law student tells Legal Cheek:

“What do these students expect when enrolling? Talking about grandma’s cupcake recipe? It’s obvious the harsher stuff like murder, rape and GBH will be in there… Lord Denning, whom so many of us admire, fought bravely in the trenches in the First World War. Doubt he needed a trigger warning when doing criminal law lectures.”

Others take an opposing stance. Olivia Potts, a former criminal barrister, is one of them. She tweeted:

There are also concerns about how, exactly, these hard topics are taught.

Teaching style is unique. We all have or have had the professor who loved group discussions; the professor who spoke for 45 minutes at a time and would tut at raised hands; the professor who preferred small group work with a feedback-giving session at the end; and the professor whose mantra is directing questions at students even if they don’t have an immediate answer to offer.

The latter is what’s known as a Socratic professor, though many more will know them as a ‘cold caller’. Gersen is one of these; she makes it her aim to call on 30 to 40 students per lecture (a prospect that likely makes some students shudder). But if there are subjects which may upset particular students, on which students may have too personal an experience, then perhaps teachers should avoid this teaching style.

Gersen, for one, is having none of that. She sticks by her more forceful method because she believes relying on voluntary contributions in class produces an uneven distribution of participation, “skewed male and white, and away from women and minorities”.

Gersen believes in continuing with her Socratic ways, alongside other methods of teaching like pre-reading and group exercises, even in lessons on hard subjects. She thinks suspending one’s usual style of teaching is not a good idea “unless one wishes to convey a kind of exceptionalism about the topic” — which would be an unwanted head-butt to Estrich’s “stop treating [rape] specially” plea.

This is a view shared by Steven Vaughan, a senior lecturer at UCL. Writing on Limits of Lawyers, he said:

“What happens when we shy away and don’t have those conversations [about hard topics]? We make those topics ‘special’, but not in a good way. We foreclose debate, we stifle voices, we reduce the perceived relative importance of the subjects we find ‘hard’.”

But isn’t rape, well, ‘special’? For one, it’s a uniquely private offence, legal historians citing rape alongside witchcraft as one the most difficult crimes to grapple with from a law of evidence perspective. Then, the average age of a rape victim in both sexes is between 15 and 19, meaning university students may have very recent experiences of the trauma. Even Gersen admits “many feel that rape is different” in a teaching context.

Legal Cheek has spoken to two lecturers, Clare McGlynn, a professor at Durham University, and Tanya Palmer, from the University of Sussex, who both argue sexual violence is a topic to be dealt with on its own merits.

“Of course, there are many areas of law where people may have personal experience that affects their learning and understanding of a subject”, McGlynn tells Legal Cheek. But the prevalence of rape and sexual violence, and the particular shame and trauma that accompanies it, leads her to conclude “there are good grounds” for treating it differently to teaching the Unfair Contract Terms Act or the preliminary reference procedure in EU law.

Palmer adds:

“Law — particularly criminal law — covers many unpleasant topics. However, when it comes to sexual offences, there is a high chance that some students will have direct personal (and often recent) experience of the crimes studied. For those that do, it’s also likely that their experience will have been questioned, disbelieved, or trivialised by others, or even by themselves. So, participating in a class debate about whether a given set of facts ‘counts’ as sexual assault can be particularly challenging.”

In realising rape is ‘different’, McGlynn — whose specialisms include violence against women, gender equality and the law of ‘revenge porn’ — takes steps to introduce a variety of teaching methods into her classes to ensure they are taught in as inclusive and participatory an environment as possible. Palmer tells us she provides details of relevant support services in her module handbooks, online and at the end of her lecture slides.

Other initiatives include one at the University of Gloucestershire where students wary of voicing an opinion out loud are able to file answers electronically which can then be cited anonymously in discussions. The advent of ‘law mums’ and ‘law dads’ at some institutes gives students a formal link to aspiring lawyers one year ahead, who can be used as a support — and a heads-up — for younger students.

This extra layer of sensitivity may make Estrich shudder, but maybe it’s going to have to be accepted within legal education in this ‘age of trauma’. The multiplicity and subjectivity of hard topics on syllabuses means that even if enrolling on a law degree is a trigger warning in itself, it’s a warning that may prove ineffective even for those who take heed of it.

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