Can a Law School Handle the Law of Fair Sexual Harassment?

The popular crime drama program Law & Order: SVUmade headlines of its own earlier this year when it hit the rare and impressive 400th episode milestone. Now in its 18th season, the long-running show follows an elite squad of NYPD detectives and their legal colleagues during the investigation and prosecution of sexually base crimes.

While the show may be fictional, the stories it tells are often “ripped from the headlines.” And, unfortunately, it’s found ample fodder. SVU is one of the longest-running television series in history due in no small part to the fact that sex crimes happen in shocking multitude all over the globe every single day. And, as anyone who’s ever watched the show knows, lawyers play a significant role in bringing sex crime perpetrators to justice — often navigating the tricky ins and outs of the law in order to do so.

Here’s a closer look at the issue of sexual assault, along with why it’s an important area of study for law students.

The Reality of Sexual Assault

According to the National Intimate Partner and Sexual Violence Survey, a study conducted by the National Center for Injury Prevention and Control at the Centers for Disease Control and Prevention (CDC) with the support of the National Institute of Justice and the Department of Defense, just under one out of every five women in the US — or 1.3 million American women every year — have been sexually assaulted.

And that’s just in the US. Research from the World Health Organization (WHO) in collaboration with the London School of Hygiene & Tropical Medicine and the South African Medical Research Council further reveals that violence against women, including sexual violence, is escalating to a “global health problem of epidemic proportions.”

The fall out of these assaults is profound. In addition to the risk of death and injury, WHO’s findings also identify other serious health impacts of sexual assault, including depression, alcohol abuse, sexually transmitted diseases, unwanted pregnancy and abortion, and low birthweight babies.

Law Schools and Rape Law

Mere decades ago, rape law wasn’t part of the typical law school curriculum “because it wasn’t considered important or suited to the rational pedagogy of law-school classrooms,” wrote Harvard Law School professor Jeannie Suk Gersen in a 2014 New Yorker piece, “The Trouble with Teaching Rape Law.”  After the inherent sexism in rape law was exposed, she says, “The topic became a major part of most law schools’ mandatory criminal-law course. Today, nobody doubts its importance to law and society.”

And yet students and faculty members alike are reporting that law schools are now backing off from teaching rape law due to rising discomfort about the conversation. In an era of “safe spaces” and “trigger warnings” this is a contentious topic with some organizations arguing that the experience of taking a class on sexual assault can be a traumatic experience resulting in poor performance. And as attorney Stephanie Davidson explains, “All we are saying is that the statistics suggest that women in the room (and some men) have had personal experiences with that kind of violence, and since law school is no longer aimed solely at rich white men, we have to recognize who is in the classroom.”

However, others suggest that when fear of the conversation begins to stifle meaningful dialogue, we’re moving backward. In this sense, it is exactly this fear of the conversation which merits that “law students develop the ability to engage productively and analytically in conversations about sexual assault,” insists Gersen.

“A Terrible Reality”

In advocating for the rigorous teaching of rape law in law school classrooms to BuzzFeed, Yale Law School professor Jed Rubenfeld highlights the elephant in the room: “Every topic taught in criminal law is a terrible reality.” Not only that, but it’s also a dynamic reality — meaning new topics are constantly arising which mandate informed legal perspectives and insights.

Take “stealthing,” for example. This new trend, during which men remove their condoms during consensual sex without the knowledge of their partners, may violate civil and criminal laws, but the territory is as yet uncharted. As Tampa Defense Attorney Hunter Chamberlain told WZZM 13, “As of yet, that statute does not exist. To change this from a legal behavior to an illegal behavior, the legislature or the courts are going to have to further define what consent means.”

Positioned to play major role in expanding laws to cover stealthing and other emerging sexual crimes? Legal professionals with a background in sex law.

And speaking of “terrible realities,” there’s yet another reason law students may feel particularly invested in sexual assault. Not only are women between the ages of 18-24 at elevated risk of sexual violence, but among graduate and professional students, 8.8 percent of women and 2.2 percent of men have experienced a rape or sexual assault themselves.  In other words, even on law school campuses, the topic hits very close to home.