This spring, students at Columbia Law School took part in a unique course offering for the first time: the Sexual Assault Law and Policy Reading Group, organized by fellow students. The reading group covered the history and theory of sexual assault law, Title IX, and pedagogy in criminal law courses. The group also explored alternative approaches to the criminal law framework, sexual assault in prisons and the workplace, revenge porn, and the use of rape as a war crime. Structured with an intersectional focus, the syllabus addressed the dynamics of race, gender identity, and sexual orientation as they pertain to sexual assault.
Sexual Assault Law and Policy is the product of several student projects aiming to build spaces in the law school devoted to the critical analysis of legal responses to sexual violence. Over the last several years, the sexual assault unit included in the foundational 1L criminal law course has stimulated charged conversations. Persistent social myths about what constitutes rape, disagreement about where the law should stand on consent, and assumptions about the personal experiences of classmates tend to interact in a way that reveals divergent beliefs about sexual violence. These divergent beliefs underscore the importance of dialogue regarding sexual violence. Yet, some professors have chosen not to teach sexual assault law at all, which risks signaling that it is not an area worthy of study. Students have long expressed an interest in a course that focuses on sexual violence as both a product and cause of gender inequality and discrimination. These issues also intersect with some of the historical flaws of legal pedagogy.
The teaching of sexual assault law is heavily influenced by this traditionalist field’s reaction to the relatively recent presence of women in the profession. Only a few decades ago, women constituted a small minority of law students. The almost exclusively male law professoriat often reacted to their presence in the classroom with open contempt and hostility.[1] While the current generation of professors ascribes to a more civil model of classroom interaction, the impact of their having been educated in an environment that perpetuated explicit biases must be unpacked, especially in light of continuing gender and racial disparities in law teaching.[2] Despite notable improvements, there is a surprising degree of commonality in the experiences of current law students and those who graduated decades ago regarding the dominance of outmoded ways of thinking about gender, sexuality and social inequality during discussions of sexual assault.[3] Just as cultural dogma about sexual violence does not disappear when we step into the classroom, misogyny and heteronormativity do not disappear over time through some magical process of intergenerational erosion.
Sexual assault law is one of several areas in which students are expected to emulate a particular type of legal thought, and are too often discouraged from incorporating our awareness of its fundamental flaws into our training in a meaningful way. We live in a society in which sexual violence is prevalent, a fact that should frame our learning of the technicalities of a legal system that fails to address that violence on a massive scale. The impact of these failures on the perceived legitimacy of the current state of legal education is hard to ignore.
The question of legitimacy also implicates the university as a community-regulating body. Law students live within the sphere of university governance, many under administrations whose responses to sexual violence have been criticized for the same failures as the legal system.[4] The timing of the launch of Sexual Assault Law and Policy highlights a major crisis within Columbia University, exemplified by the Title IX complaint against the University and the subsequent Department of Education investigation. Law students are part of broader student communities, and are thus affected by our universities' actions; we also understand the process of reshaping policy, as much of our legal education requires us to address the kinds of considerations at issue regarding sexual assault.
Sexual assault law is one of many areas in which students desire to take on a greater role in the academic discourses in which they participate. Law students are tomorrow’s prosecutors, defense attorneys, judges, and advocates for legal reform. We should play an active part in charting the direction of our legal training, rather than passively accepting whatever is offered to us. By collaborating on building spaces to explore legal questions related to developing social debates, we gain valuable firsthand experience in structuring a rigorous yet forward-looking curriculum.
This post originally appeared on The Morningside Muckraker.
[1] For CLS’s history specifically, see A Brief History of Women at CLS, available at http://www.law.columbia.edu/law_school/communications/reports/Fall2002/brief. One CLS professor who graduated from law school in the 1970s has described her experience of male professors refusing to call on women in their courses except for one day a month, when they would ask female students explicitly sexist "powder puff" questions.
[2] The impact of gender on law students’ experiences has been explored over time at various institutions. See Lani Guinier, et al., Becoming Gentlemen: Women’s Experiences at One Ivy League Law School, 143 U. Pa. L. Rev. (1994-1995); Katherine Franke, A Generation after “Becoming Gentlemen,” Gender and Sexuality Law Blog (March 23, 2009),http://blogs.law.columbia.edu/genderandsexualitylawblog/2009/03/23/a-generation-after-becoming-gentlemen/; The Gendered Situation at Harvard Law School, The Situationist (May 8, 2013), https://thesituationist.wordpress.com/2013/05/08/the-gendered-situation-at-harvard-law-school-part-i/.
[3] See Lynn Schafran, Is the Law Male? Let Me Count the Ways, 69 Chi-Kent L. Rev. 397 (1993).
[4] U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual Violence Investigations, (May 1, 2014), http://www.ed.gov/news/press-releases/us-department-education-releases-list-higher-education-institutions-open-title-ix-sexual-violence-investigations.