Jonathan Masur and Richard McAdams, “Teaching the Law of Rape”

Professors Jonathan Masur and Richard McAdams discuss the unique issues involved in teaching the law of rape in a law school. Topics include sensitivity to the potential presence of survivors of sexual violence in the classroom, whether censorship of students' comments is appropriate, and why we learn rape law.

Jonathan Masur is John P. Wilson Professor of Law, David and Celia Hilliard Research Scholar, and Director of the Wachtell, Lipton, Rosen & Katz Program in Behavioral Law, Finance and Economics.

Richard H. McAdams is Bernard D. Meltzer Professor of Law.

Presented on February 25, 2016, by Law Students for Reproductive Justice.

Transcript

Speaker 1 (00:02):
This audio file is a production of the university of Chicago law school. Visit us on the web at www.law.uchicago.edu.

Moderator (00:20):
So the way today's talk is going to go, I'm kind of going to get us started with a few questions, but I'm sure you all have your own questions. And that's kind of the point of this discussion. To talk about it and have something more informal than me just asking. And so I'll ask a few questions to get us started and then I'll open the floor up. Don't feel pressured to ask questions if you don't have any, I have many additional questions that I can come up with. So I think just to start, I would like the professors to kind of introduce themselves to everyone and kind of tell us a bit about your background and your path into legal activity.

Richard McAdams (00:58):
Richard McAdams, I've been at the law school since 2007. I've been teaching for a really long time since before some of you were born I guess, 1990. I taught at a variety of law schools. I've always taught criminal law and that's it.

Jonathan Masur (01:27):
I'm Jonathan Masur. Let's see here, so I started at the law school as a Bigelow fellow in 2005 and then I joined the faculty in 2007, the same year that Richard did. In the intervening nine years, I taught criminal law eight of those nine years and always the first quarter of criminal law. So always the law of rape. So this last quarter was my eighth time teaching it.

Moderator (01:50):
So my first question is about how you were taught the law of rape when you went to law school. Just kind of give us a perspective of how things might have changed from your time to now.

Richard McAdams (02:02):
And let me just say, I've also-- I guess this is the first year for those of you that I have not taught criminal law since I've been here. And most of those years I've taught both quarters. And this is an easy question for me to answer because when I was in law school, they did not cover rape. Even though we had a four hour course over two semesters, two hours a semester, that it was typical of, you know, the 1980s that the subject of rape was not covered in class. It was often-- there was often nothing in the casebooks. And this was a complaint of women and of feminist legal scholars about the criminal law course, that it didn't have something that could connect the course to the real world than some of the other topics.

Jonathan Masur (03:02):
So, you know, the way I was taught the law of rape and criminal law is similar in some ways to the way that I teach it now. So it was just it was one day in my criminal law class and the case we read was State vs Rusk. The case about Pat and Amy Rusk that that we read in my class now, I used a completely different case book went to completely different law school. I think that probably 80 to 90% of law students in America read State vs Rusk and spend a day talking about that case. So those were the similarities, I guess. The difference was that the discussion in that class was basically a free for all drawn very much along gender lines. So it was a lot of men arguing that Eddie Rusk was not guilty of rape and a lot of women arguing that he was guilty of rape.

Jonathan Masur (03:54):
For those of you who know Professor Weinrib, Professor Weinrib was in that class with me. This was our first semester of one L year, I think the first class we took. And, you know, I remember her being centrally involved in that discussion as well. It was one of the first ways I sort of got to know her actually. And I think of that class as the antithesis of what I'm trying to do and maybe a hallmark of what I am attempting to avoid in most cases. And also as I said, it was just the one class, we just read the one case. So basically we were just talking about the actus reus of rape, the force requirement, and the idea of consent. There wasn't really any discussion of mens rea of the different perspectives that men and women might have. And then the other largest difference, of course, was things like sexual assault on campus were not the major salient political issues back then that they are now. And so we just didn't really spend a lot of time talking about things like that that were more contemporary. It was really centered around that taste and the force requirement much more than anything else.

Moderator (05:01):
I think Professor Masur, you touched on my second question a little bit. But have you changed anything about the way that you teach rape throughout the course of your career? Like with gaining more experience and seeing how things work have has anything changed from when you started teaching it to now?

Jonathan Masur (05:18):
Sure. I mean, I guess I would say it changed in a couple of ways. So one is in terms of the substance and content of the course. I try to spend a good portion of time, you know, roughly half of the second class talking about sort of contemporary issues of sexual assault, especially on campuses and what the response should be from universities or from other sort of similarly situated institutions. It's not a perfect fit because it's not exactly criminal. If the University of Chicago takes an action against the student, that's by definition, not a criminal action. It's some sort of civil disciplinary proceeding, but I think that the questions that those issues raise are very much in line with the questions that the law of rape raises more generally, and they are also of obvious importance and salience to students who are coming through the class now.

Jonathan Masur (06:08):
So I think it's really important to talk about them. So that's a point of difference about the content and that's a relatively recent innovation in my class, the last couple of years, three or four. The other thing I would say is I changed over the years-- and this is by far the most dramatic change in my class, at least from my perspective. I've changed over the years the extent to which I control the class discussion and the extent to which I allow the students to sort of say whatever they want to say at any given moment. When I first started teaching it, you know, like with most subjects, somebody raised their hand and wanted to make a point, I would call on that person and they could say whatever they wanted to. Or I would ask people, you know, for those of you have been in my class often, I will ask people can, we've got a case in front of you, who do you want to argue for who thinks got it, right.

Jonathan Masur (06:54):
The prosecution or defense, and I let them pick. I used to do that sort of thing as well. But I found that the results were really counterproductive. The one thing I thing I learned, maybe the most important lesson I learned from that class, was that at some level I felt responsible not just for what I said in the class, but for what everyone said the class. Not that it would be attributed to me, but that anything that anyone said could affect class dynamics in a powerful way and sometimes those effects would be negative and they would get in the way of learning get in the way of engaging with the material in a thoughtful and sort of reasonable way. Yeah. And so there were incidents where students would say sort of outlandish things and the class would be in an uproar about them.

Jonathan Masur (07:38):
And it would really disrupt the class, it would disrupt the learning process. And I got a very strong sense, after that, that people had checked out. They didn't want to engage with the material anymore. There were people who didn't want to come to the second day of have class and all of those sorts of things. And it was a result of, you know, the reactions of their classmates. I mean, I can tell the most outlandish of those stories if you want me to. But I thought it was more important to try to reign things in. As much as I want to hear what students have to say and as much as I realize that I'm losing something if I don't allow everyone to offer whatever comment they want to at any moment, I felt as though I had to reign things in someone more than that.

Jonathan Masur (08:18):
And so now, for those who've been in my classroom know that this is how I do things, I assign roles and call on people to make arguments on the side to which they'd been assigned. And I do it because I think it takes the emotional impact out of a person's words when they are speaking to them as an advocate for a side that they have been directed to argue for, not as their own view. So the same comment from someone who's acting as a defense attorney for Eddy Rusk has been told you must be a defense attorney for Eddy Rusk. I do not think that carries the same sort of emotional impact as that person raising his or her hand and speaking the same words. And the reason is because everyone knows you're just trying to be a zealous advocate. So I don't hold that against you personally, I'm not upset or offended that a member of my class has those views the way I would be if I actually thought those views were your own, that you were expressing freely in the class. And so it's much more. So I try to direct the discussion much more in that way. I try to confine people to particular roles with the hope that all of the important ideas and arguments get expressed still in class, but within a framework that you know, keeps everyone engaged keeps the class in a more civil level and prevents people from becoming angry with one another and thereby checking out and stopping learning in the way that I want the learning to take place. Sorry, that was a little long, I apologize.

Richard McAdams (09:44):
You know, I'm sure that I've changed things in lots of ways because I've been teaching this-- I started, at the beginning I started teaching the law of rape. But, I have this memory and maybe it's just about being a relatively new teacher, because I have memories like what you're describing, but they were long time ago. They haven't happened here. And maybe that's, I guess, partly too, how I teach the course of this case. Certainly at the beginning of the, usually three days that we spend on rape, I do have a lot of kind of technical questions. I'm not really asking a person to take a side so much of just saying, you know, what is the standard of reversing a jury verdict on appeal? I mean, what is the complaint?

Richard McAdams (10:43):
Is that it, you know, to try to get out the back that the defendant is just arguing insufficient evidence as a matter of law, which means that you take the facts in the light most favorable to the prosecution. Which means we're going to talk about the facts in the light most favorable to the prosecution because that's what as lawyers, we, we do. I mean, we weren't there. I am a little perplexed at how much people have an opinion about who's telling the truth, because like you never met them. You never saw them. Who's telling the truth, you know? The jury did, they believe one side, this belief, the other. We're doing this appellate thing. And so we take the jury to a result, all credibility issues in favor of the prosecution.

Jonathan Masur (11:22):
But I do remember early years. Now, it's funny because I normally I attribute that to the fact that-- my impression is that, of course I was teaching at other law schools, but my impression was that in the nineties, there would be many people in the class who had never had a conversation about rape or sexual assault with anyone other than like their close friends or their family members. And so it was just, it was a much more bubbled existence. I think that people had no idea that they were about to say something that 75% of their classmates would think was just completely outrageous and incredibly stupid. And they had no idea that they were about to do that because they thought they were just repeating some sort of sensible, you know, Sage perspective and then whoa, they were blindsided.

Richard McAdams (12:26):
I didn't. So so it's, it's, I feel a little small for the fact that I don't look back on that with complete heart. I sort of thought like, well, you know, got it out. You know, we got it out. Not great for you, perhaps the fact that you will be known as the person who said this in class, but this class was a little real. And a lot of classes that are not really all that real but I feel like the wariness that exists now is partly because in college, people have already gone through that realization that there are different ways to think about this than the one that they that they have.

Moderator (13:15):
Do either you think about trigger warnings before teaching this part of criminal law? Do you set out ground rules before setting out or in the beginning of class or something like that?

Richard McAdams (13:27):
I do not set up ground rules at the beginning of class. I think I remember a couple of years beginning with a statement about what a controversial and sensitive subject this was. In fact there were undoubtedly people in the classroom who had been victims of sexual assault and it felt like the consequence of that was that no one said anything. Like everyone decided, oh, this would be a terrible thing to talk about. So no one raised their hand. The people I called on said the most minimal things possible. So no, I don't, I don't set out ground rules. So trigger warnings-- I guess we could have a conversation about exactly what trigger warnings are. I will say what I do. On the syllabus and this is actually a good setting for me to get feedback on things like this because it's easier for people to, especially this year when I'm not teaching this stuff.

Jonathan Masur (14:33):
But the things about criminal law is it's appropriate, to say for the entire course "trigger warning," right? We're going to talk about murder and sexual assault in half days in which, you know, we're in class. And, you know, right up front, we get to emission liability and there's one infant that starved to death and another that's beaten to death in front of somebody who does nothing except eventually call an ambulance. So you know, there's a cannibalism case, there's just all kinds of horrible things that humans do to each other, much more than insane contracts. And so I have on the syllabus, it's not a real long syllabus.

Richard McAdams (15:23):
I say, there are a lot of upsetting things in this class. There's a lot of upsetting things in the readings, if you don't want to get called on, for some particular class, let me know. And I mean that, and I guess maybe I should write down, "by the way, I'm not going to ask you to explain." Sometimes people want to start to explain and I'm like, "you don't need to explain." I mean, if you do this for 50% of the classes, maybe you need to explain but if you pick out three classes, that's fine. You know? And I think to some extent, you know, the syllabus, says rape, homicide, criminal law, insanity and so forth. It is a bit of a a trigger warning, but it's not obviously intended for that purpose.

Jonathan Masur (16:26):
Yeah. I mean, I largely agree. I don't know exactly what I think about trigger warnings, sort of at large, I've spent a lot of time thinking about them but I haven't really reached a conclusive view. But putting that aside, I agree, you know, the syllabus says murder on it. So I assume that if there needs to be a warning that constitutes a trigger warning that someone's going to get murdered in the reading for that day. And then the syllabus says rape, and I assume that everyone understands that they're going to read cases in which someone is the victim of a rape. And you know, I think that the cases that are in the cases that we read in those classes are not especially graphic. And so I think that it's not as if, you know, you read the word rape and you would still not be prepared for what you're about to read in the case.

Jonathan Masur (17:11):
I think that that word pretty much sums up what's important about those cases and what might be possibly triggering. So just like Richard, I also invite people on the very first day of class to just let me know if they're not able to participate in class on any given day, send me an email and say, I'm not able to participate in class. I say explicitly, I don't care what the reason is. You don't have to give me a reason. I don't want any reasons. I don't want any excuses, et cetera, just say not able to participate in class today. And that will be the end of it. You know, that's the first day of class. And then I said it again the day before we had the rape discussion, just to try to remind people about it. And I didn't say, you know, by the way, everyone we're about to talk about rape. So I just want to let you know, partly because I thought it would be a mistake.

Jonathan Masur (18:00):
Let's put it this way. I think I didn't want to make the subject more difficult or touchy for anyone than it otherwise might be. I didn't want to sort of be up standing in front of the class saying to the students saying "hey, I think that this is really difficult for everyone to discuss. So I think that you should all be opting out in droves." I wanted it to be the student's choice. So I sort of said it again, but I didn't necessarily link it to the rape conversation. I learned afterwards that some students thought that this ability to opt out might just be limited to times when they had not prepared properly or that I would assume that they had not prepared properly. That was the reason they were opting out. So in future years, I might try to be a little bit more explicit about the, any reason whatsoever, including not wanting to discuss the material, but nonetheless there were quite a number of students, you know, maybe not quite a number, but a noticeable number. Let's say half a dozen who opted out of the rape discussion compared with, you know, zero to one on the typical day. And so I took that as a sign that the people who were not interested in discussing it were screening themselves out. And I thought that that was a positive thing generally. And I'd much rather have it be that way than have people not want to come to class on those days, because they were worried about being called on.

Audience Member (19:12):
I'm going to open it up if anyone has any questions at this point, I think there's generally an understanding in law school that an individual's personal experience with the legal topic is not usually superbly helpful. Do you think that this is an exception, or do you think this is an even stronger case of that? I guess.

Jonathan Masur (19:36):
Helpful in what way?

Jonathan Masur (19:38):
I mean, I think in most cases like your own experience with a contract or something is usually not super helpful in order to further the conversation. But do you think that someone who has experienced sexual assault could ever be helpful or do you think that's something that would even further shut down the conversation?

Richard McAdams (20:01):
I think it could be helpful. I think it would be, I mean, it might be helpful in coming to a view. I think it would be very hard to express the connection between your experience and claiming the factual insight that you have. So I mean, in general, I actually would, to some degree, I agree with you about contracts. But sometimes people bring up some strange thing that happened to them without really-- but in general, actually experience is generally useful. So I mean, long ago when I taught at Chicago I once taught night students and they were all out working and I was teaching in contracts and there's a sort of vast amount of experience they've had with the working world meant that it was actually a much more sophisticated contracts class than the one I taught during the day. But that was because they weren't relying on one experience, they were relying on a profession, years of something. But so in general, yeah, I think experience always shines a light line on things that other people might not understand, but it's very hard and I wouldn't expect anyone to kind of make that connection in the classroom setting.

Jonathan Masur (21:30):
I think I agree. I mean, at some level I think that sort of personal experiences, not just with unconsenting sexual assault, but just with sort of sexual mores generally are incredibly important in this area, because so much of how we think about the law depends on how we think about the ways that people interact and engage in intimate conduct. So, you know, it's really important to try to understand things like what sorts of behaviors would individuals find coercive or, you know, or sort of threatening, let's say. Do people say no and mean yes? What are the typical sort of ways in which people consent to having sex? If it's not, you know, sort of expressed verbal consent and things like that. And you know, I don't feel like I've kept up with society and all those sorts of things.

Jonathan Masur (22:21):
I don't know what the average 22 year old thinks about all those sorts of things right now. You know, I only learn when I talk to students about it really. So I think that all of that stuff is enormously valuable and then certainly people's own lived experiences with unconsensual cases of sexual assault and rape are also very important as well. I feel as though there is, but you know, I think I have not yet had a class where someone really spoke about their own experiences with sexual assault. And I think that's quite understandable. I think people don't want to necessarily bring that into the classroom. And secondly, I think that there's a danger in sort of the anecdote as a substitute for kind of data and more kind of considered thought, you know, there will be times in class when people would say, "well, look, you know, here's my view of this."

Jonathan Masur (23:08):
And "I would never do X or I would never do Y" or "this would never happen to me, or that would never happen to me." And that's useful. That's one data point, there are 95 people in the class. So I, you know, I'm nervous about allowing those sort of single data points to kind of overwhelm everything. You know, in an ideal world, I might ask people, I would give everyone, you know, and clicker to ask questions, like, has anyone ever said no and meant yes or something like that, but I don't do that in class. I think that that can run into problems also. So I've refrained from that sort of thing. But the more that I learned about people's lived experiences, I think the more valuable it is.

Audience Member (23:43):
Suppose you became aware of an outside of class conversation about these issues that rose to a level of heatedness. Would you address that in class?

Richard McAdams (23:59):
All it is is heatedness. Yeah, no. I mean, I hope people have heated discussions about everything I talk about in class, you know? If they do, then I sort of go, I did my job, I got to that. I got them to talk about it. They didn't just like at the end of class, close their books and go out and like their mind is on something else. Right. They actually were thinking about it. And so I think heatedness in general is fine. That's all there is.

Jonathan Masur (24:31):
I would just add, I mean, I feel like it's enough of a challenge to sort of you know, keep control of what goes on within those four walls for 65 minutes, three days a week. I don't even begin to think that I have any capacity to control what I say outside of class door, what I especially want to try. And I think those conversations are part of the reason why you go to a law school like this one with so many great students to have as colleagues. And I don't want to get in the way of interfering with that. The only time I'm trying to imagine circumstances in which I would have said something. And by the way, I should say my impression is that there are heated conversations about this subject practically every year among the students and possibly many other subjects as well.

Jonathan Masur (25:11):
You know, I teach patent law and my students sometimes get in heated conversations about patent law topics after class, although it's a different kind of heated. I'm trying to imagine a circumstance in which I would do or say something. And I guess the only circumstance I can imagine is one in which somehow that conversation outside of class was having an important negative impact on the discussion within class. Like if there was some conversation that took place outside of class, and then as a result of that, the next day 50 people said, we don't want to participate today. Or people just refuse to engage in the conversation in certain ways or something like that. And so then I would probably talk about it, but my discussion would be limited to trying to say like, look, whatever's going on outside of class. We have to put this aside because we have a mission here within class. And I want to keep us on that mission and not let that mission be derailed by whatever else might be happening in the green lounge afterwards.

Richard McAdams (26:06):
Yeah. I mean, I want to add that longer ago, in another law school, there was someone who was, I guess you might call him a gunner. Although sometimes I would ask questions and I would pause and no one would raise their hand and he would kind of look around and then raise his hand. So I thought of him as a helpful student, like, you know, I don't want this to be a one sided conversation the whole time. And and then someone dropped a note in his locker that was, you know, vaguely threatening and super bullying about, you know to talking in class. So that I felt like I had to address the class, although even, and I had to, and I don't regret doing it. But even that, like the effect of this class in which I was having trouble getting people to raise their hand.

Richard McAdams (27:00):
It was like, no one raised their hand. Right. And then he didn't raise his hand because he sort of had enough of it. But if I heard, if I heard that people were-- I mean, if they were going beyond the pail on anything, then I guess I did not necessarily want to say something in class, but I'd want to say something, you know, to the right people. My hope by the way, is that a lot of the topics in class that people come to class with very strong views of. But you know, I didn't really hope where they have people have very strong views that I'm going to, in the class, cause them to suddenly make some major change in what their views are. But I do think of like maybe moving the conversation beyond the existing impasse so I kind of think of the after class conversations as the continuation of the project that was starting in class. And I hope that it will take place with many people. That it will take place in a somewhat different way. That people will say, well, I see this point I didn't see before, but don't you see this other point?

Audience Member (28:15):
You decide the topics that you discuss in class. Cause I imagine with this particular topic, there's a variety of subjects. You just don't maybe bring up because they don't occur with a lot of frequency or there may be ancillary to the discussion. So I was wondering how you decided on which particular topic

Jonathan Masur (28:34):
Do you have an example of something?

Audience Member (28:36):
See, for example, like a prison rape or male-male rape?

Richard McAdams (28:43):
Well, I find that the book has something about prison rape, something about male and male rape. There's so much to discuss that we can't possibly talk about, you know, every point that's in the book. I like fact that, since arriving here, because we have a longer amount of time with criminal law in general-- two quarters-- I've gone from spending two days to spending three days, maybe even sometimes four classes on rape. So I cover a lot more topics, but basically as a criminal law course, you know, I'm sort of wedded to the idea that we talked about the actus reus of the crime, the mens rea of the crime. And then on the third assignment is rape shield laws. That's what I've been able to get to that I didn't use to. Within those things, then, I don't know.

Richard McAdams (29:48):
I, I talked, I tried to talk a little bit, like there's a little note about the topic that seems like enormously important and salient, which is about alcohol and the consent standard. And, you know, we've studied the fact that alcohol may be irrelevant to whether the defendant has the mens rea or not. That the defendant may not be able to use the fact of intoxication to disprove the mens rea. And then we would get here you know, I'm sort of distressed at how little is in the book, because it's such a major issue that someone's consent can be vitiated can be nullified by the fact that they were intoxicated at the time they gave it. And so that then raises all kinds of issues like you know, how intoxicated does a person have to be? And how do you describe that in the law? What, you know, how do you write down a formula about how intoxicated someone is? For driving we just have a blood alcohol limit, but we don't do that in the law of sexual assault. So otherwise this is the kind of thing that, you know, I'm always curious to get feedback about. There's some, some subtopic within the reading that we should have gotten to in class and didn't, but they're always a lot of them.

Jonathan Masur (31:16):
Yeah. I mean, I don't have that much to add, you know. We have two days, I spend one of them on the actus reus on rape and spend the other one on the mens rea of rape. And you know, I wish I had additional time. I think rape shield laws is at the top of the list of things that I would like to spend more time discussing. And would if I had more time and sort of as a result of the time crunch only able to barely allude to and of course now that the time pressures become even more severe given that I really want to spend some time on campus sexual assault and the sorts of issues that that raises. So, you know, there are a lot of subtopics-- rape shield laws and male and male rape in prison rape that you've described-- that I would like to have in there. If there were more time for it, but I feel like I'm already trying to cram so much into the time available. I don't want to further dilute the discussion of the topics that we have.

Richard McAdams (32:07):
And I should confess, I don't cover campus rape. I think, you know, because all of these issues that come up in criminal law are kind of replicated in civil law because it's also a tort and then there's private organizational law, which is what private universities have when they say, "you know, here's a code of conduct and if you violate it, we'll kick you out." And so all of these issues come up in all of these cases and in any one of them, it's very complicated, but it's no reason to think the right approach, the right answer to what the rules should be in one context is the same brand of another,

Moderator (32:51):
So you guys both mentioned rape shield laws. And I think that in our current class as well, we didn't have time to get to it.

Richard McAdams (33:03):
Yeah. So it used to be that in the, you know, before the 1970s, when these laws started to go into effect, it used to be that in pretty much any rape case, even a rape case that involved clear physical beating of the victim. And even when the defendant was saying, I'm not the guy got the wrong person, it would still be the case that in cross examining the complaining witness, the victim, that there would be an inquiry into her quote unquote chastity as a way of trying to diminish her in the eyes of the jury and to you know, make the jury think that she was promiscuous. That she was in some sense, not deserving of the criminal law protection for this claim. And it would be described by any women as a second rape because they would be asked about, you know, how many men they had sex with in their lives and, you know, under what circumstances.

Richard McAdams (34:11):
If they were married, had they cheated on their husbands and, you know, is it not true that they once made some sort of, you know, flirtatious but sexual remark to a neighbor who the defense attorney had talked to or something. And did they go drinking by themselves, you know, without their husbands and so forth. And so it was always possible within the law of evidence for a judge to have excluded this under some sort of general principles, but in general, that did not happen. And so the legislature passed laws that said, you know, that in these cases, there's a very-- you know, in general, half sexual history is not relevant and then there are exceptions. And so today, you know, nobody really defends the battle days, but there are questions about the exceptions, like, you know past sexual history with the defendant is usually accepted and there are certain other-- you know, like I think the case in the case book has a case where the defendant is claiming that the person was pregnant by another man and that's why she told her mother that she had been raped by him. And so in order to push that theory, wanting to ask about sex with that particular other person, was that, did that fit within an exception or not? That's kind of issues that exist today.

Jonathan Masur (35:39):
And I would add, I think of rape shield laws as the leading example within a broad spectrum of legal rules or even just private rules that are designed to make it easier for people to come forward and report rapes and try to prosecute rapes, or sometimes harder for people to come forward and try to accuse someone of having raped them or prosecute rape. Rules that sort of balance the interests of the defendant with the interests of the victim. And so, you know, just to throw out another example, a lot of newspapers have a standing rule-- this is a private rule, not a matter of law for first amendment reasons-- the standing rule that they will not print the name of sexual assault victims in the newspaper. And so I think that rape shield laws-- that rule and many other rules like it-- as sort of all part of a bigger question about what sorts of rules we want to create to make the reporting of the crime easier or harder and how we're going to go about balancing the difficult interests of the victim and the defendant in all of these cases.

Richard McAdams (36:43):
If you wanted to study that outside of criminal law, the courts specifically talk about the law of evidence, which really isn't an evidence topic, but it's so related to the issue of rape that it's included in the criminal law casebooks.

Moderator (36:59):
Particularly, going off of that question, I'm interested in criminal law, but I think I could describe myself as defense oriented. But it's a very tense and strange process for me. Have you given any special thought to how you treat the parties in this particularly sensitive-- like what you call them? For instance, the word victim or the word complainant, et cetera. Have you done any thinking about that?

Richard McAdams (37:31):
I go back and forth, like I just did in my answer, you know, this is actually something that gets argued about in rape trials because the defendant will say you should not be able to use the word victim because the trial is here to establish the contested fact of whether this person was a victim. At least in cases where the defendant is claiming that there was sex, but it was consensual. Then, then they will say no. In other cases, if it's clear that the defendant is saying he was raped, it just wasn't me, then it wouldn't necessarily object to the word victim because you're not really contesting. And so courts will, you know, the technical term would be the complainant. So anyway, I wind up going back and forth, I guess.

Jonathan Masur (38:27):
In answering this question, am I supposed to pretend that we have not had a conversation on this topic or am I allowed to reference that conversation? So, I mean, I gave some thoughts about this and I emailed Kaitlin, my former student whom I knew was, I think, as you put, it pro-defense but also anti rape, which I thought was like a bold stance to take. You might've said it better than that.

Jonathan Masur (38:51):
And, you know, I think so there is the issue with the word victim exactly as Richard described it. And in addition, you know, there have been, I don't know if this is the moment in history, but there have been many moments in history when people didn't like the use of the word victim because it implied something terrible that had been done to the person-- the woman, typically-- involved and that she was sort of no longer an agent. She lost a certain amount of her own self agency and self dignity. And so people prefer the word survivor. I didn't really want to use the word survivor-- it just seems so different than everything else we had talked about in criminal law. And also, you know, as much as victim kind of presumes the outcome of the case survivor or presumes it at least as much even more I didn't really love completing witness either. Again, because it was different from everything else I had done in the course.

Jonathan Masur (39:39):
And also, because that seemed to go the other direction. Like, Oh, look, here's a person who's just complaining about things. Surely she should just sort of be quiet and stop complaining. Which was obviously not what I meant. So I, I mean, I guess number one, I should say, I just used the names of the people involved as much as I possibly could and stayed away from that type of terminology. I think to the extent it was ever necessary to use a labeling word like that, I use the word victim largely on the grounds that that was the word I had used in every other class in criminal law that I use to refer to everyone else. And, you know, if somebody gets shot, they're a victim and said, et cetera. And so I thought that that was probably the best fit, although I don't think it's a perfect solution. I don't think any of these are perfect.

Moderator (40:29):
In Professor Starr's class, she specifically had an opt in for the discussion of rape and she also had a general opt out option for every other class. But specific to rape law you had to opt in, have either of you considered having that?

Jonathan Masur (40:45):
Can I, can I just ask, do you have any idea how people opted in?

Moderator (40:52):
People raised their hands.

Jonathan Masur (40:54):
Oh, so it wasn't a pre-class email me if you want to be part of it. It was just, opt in, raise your hand.

Moderator (41:01):
And she had a whole spiel at the beginning of that.

Jonathan Masur (41:03):
Yeah, see. I very carefully do not want to do that. I'm very opposed to that. I mean, I'm sure it was fine in your class. I'm sure Professor Starr knows what she's doing, but I don't want to do that in my class. I don't think it would work in my class. I could imagine a pre-class email opt in sort of system. Although the concern is that three people would opt in and then they'd be spending the entire time talking. But the concern I have about that is when I say, you know, who wants to be the prosecutor and argue that this was rape? Even if somebody, you know, even if we could sort of abstract away and say, all right, well, they're just volunteering for a role, for the role of prosecutor. Really when somebody puts their hand up, everyone in the class is going to think that person thinks that this is rape in this case. And when I say the same thing about a defense attorney and somebody puts their hand up, everyone in the class is going to think that person thinks that this was not rape. And that's exactly what I'm trying to get away from. I want to create a buffer so that students are not forced to reveal their own true feelings about these subjects any more than they want to, and they're not doing it in class in a kind of accidental way like that.

Audience Member (42:14):
It seems like there's a little bit of intention in your class, at least. It appeared like you wanted it to appear like a normal class, but it sounds like you didn't really think about it as a normal class and it wasn't maybe a normal class. So how do you balance that kind of thinking that rape is different than the other topics that we discussed, but also wanting it to be discussed in the same way?

Jonathan Masur (42:42):
I mean, I think you've sort of summed it up pretty well. You know, it's not, I don't think it's a normal class. I don't think it's like all the other classes. I do think it is a more sensitive subject and a more sensitive class than anything at least that I teach in the first half of criminal law. And so I do teach it differently, but I don't want to-- I mean, I still value-- I guess the way I would say it is this: I'm just a total pragmatist about all of this. I just want there to be the best possible class discussion, the most people who are engaging with the material, the most people who are learning how to think about this sort of question and how to react to it and how to make arguments about it with the least amount of anxiety that would inhibit any of that.

Jonathan Masur (43:27):
And so I want this to be as much like a normal class as possible, but with the sort of anxiety inducing edge of it kind of taken off as much as I possibly can so as to sort of facilitate that engagement. And so I want it to be normal in every way possible, except for the ways in which I anticipate it will be problematic for people and will cause anxiety, will cause people to disengage and so forth. And so I'm trying to keep it as much consistent as I can with the usual class, but at the same time make certain changes that I think are important to take the emotional level of it down a notch or two. And I recognize there are trade offs. I mean, I like it in a normal class when there's just-- everyone can raise their hand and offer sort of whatever they want. I think that's valuable. And I regret sometimes giving that up in that class at least to some extent, but I think that that's a worthwhile trade-off.

Richard McAdams (44:20):
I do think that rape is the most difficult subject to teach through conversation in criminal law, but it's not like it's completely off by itself. It's sort of in the continuum includes when we talked about self defense and Goetz case, you know, to what extent race was important to Goetz's decision to shoot four black teenagers who he thought tried to Rob him. Not clear that they were trying to rob him, not clear if he would have thought that if they were white and then the question comes up of, you know, is Goetz allowed to use his fear of young black men to help him win a self defense claim to prove that he actually was afraid of sleight. And, you know, that gets us into-- that topic of self-defense gets us into naturally talking about George Zimmerman's shooting of Trayvon Martin and police shootings and so forth.

Richard McAdams (45:37):
And there's domestic violence and there's you know, we teach the Gates case where a woman drowns her five children and then [inaudible]. So there are a lot of these topics that really are hard to talk about or potentially explosive that people have very different views and very different connections to. But I think you're absolutely right-- I signed on as well to what Jonathan sent me. We're not being completely consistent here because we could either say, "no, it's just like every other topic, you know, it just like omission liability. We're not going to change anything." Or we could, you know, have an opt in rule and we could have a special, you know, 10 minute conversation about the ground rules for talking about it. And both of us picked something in between those two.

Jonathan Masur (46:37):
And let me say, I mean, I don't teach the Goetz case and those issues in my half of criminal law. If I did, number one, I think rape would not feel like quite such an outlier. And number two, I might teach those in a different way than I teach sort of everything else generally. And let me say, secondly, you know, I'm always interested in hearing what students think about this sort of thing. You know, as I said, I changed the way I taught this course sort of midstream, several years into my career because of, I think a pretty well documented sense that it was not going especially well. That the old way of doing things was not very effective and that it was making people more upset than it was actually conducive to learning.

Jonathan Masur (47:18):
But, you know, I'm open always to being convinced by students that I shouldn't be doing it this way, that I should change again or something else like that. I was convinced the first time around. So, you know, I'm always interested hearing feedback about how people thought about what people thought about that class or the exam as blind graded. So you're all very much protected. But you know, I'm always curious because again, I'm doing it because I think that this thing that works best for the students in the class and for the class discussion. Not because I have some kind of principle view about how this ought to be done. As I said, I'm totally a pragmatist about it.

Audience Member (47:49):
You mentioned that the class on evidence might be a good opportunity to cover rape shield laws... if you're interested in this topic in general, are there any classes you'd recommend?

Richard McAdams (48:04):
In, in the law of rape, generally? I don't know. Do you know, former Deputy Dean?

Jonathan Masur (48:12):
Well, I mean, this was an Ellis RJ project from a couple of years ago to have a class on reproductive justice. Does that class cover rape and those topics as well? Or is it mostly about abortion and things like that?

Audience Member (48:27):
I think it's mostly about health care.

Jonathan Masur (48:34):
I don't know. That's a good question. I'd have to think. I mean, I think we identified this a few years ago as a lacuna in our sort of course offerings. And that was why I was so excited to work with Ellis RJ to put together another course on reproductive rights. Although, as Kaitlin has just said, doesn't exactly cover this topic. I'm not sure. I mean, I think that there are some advanced criminal classes that might work.

Jonathan Masur (49:00):
And I bet that this gets touched on in some of the criminal procedure classes as well, because some of the aspects of rape shield laws and so forth involve criminal procedure and the sorts of questions that could be asked to different people in different cases, the types of evidence that are collected as well. So those are other places to look, but I don't think that there are-- I'm not sure if there are other courses that are really well centered on this and that. I think that's a flaw, it's an absence that we need to try to do something about.

Richard McAdams (49:23):
I think in the upper level criminal law curriculum, there are a fair number of courses, but they often are about things other than more about the substance. And there's federal criminal law, but that's not going to do it. I did teach a seminar a few years ago, but I always constantly changed the seminarsI teach. I taught one called Current Topics in Criminal Law and Procedure where we read mostly, you know, quotes that had been published within the past few years. And, you know, we read a book on sexual assault but you know.

Moderator (50:05):
I think people have to go to class. So if you guys could just join me in thanking Professor McAdams and Professor Masur...

Speaker 1 (50:19):
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