Mike, I also noticed that your comment in class engendered some sort of reaction. As we discussed last class, taboos are hard. I agree that it is extremely uncomfortable to talk about certain aspects of sex and race. I have some stuff to say, but I don't even feel comfortable writing them here.

-- NonaFarahnik - 05 Apr 2010

In regards to the effect on discussion, I may have been a bit hyperbolic. However, I still think that the controversial nature of any analysis and criticism of rape law draws more negativity than it deserves. This effect deters some people from offering an opinion in a public forum on touchy subjects. While this may not be a complete bar to discussion, it most likely has an effect.

To support Mike's assertion, in Georgia, gender is actually outcome determinant. The crime of rape is committed when one "has carnal knowledge of a female against her will." Under this construction, a man could never be raped under any set of circumstances.

I am far from an expert on the history rape, but here is my cursory understanding of the issue: Even as late as the early twentieth century, rape was seen more as an offense against men and not women. I know there is one academic school of thought US rape laws were enacted, in part, to protect white women (and their husbands) from black men. I also know that in World War I rape was used as a propaganda tool to draw the ire of men (husbands). Modern rape cannot be separated from its past historical manifestations when the law (and society) treated women more like property and less like men. In these societies, rape was, practically speaking, an offense against men or against society/civilization, but not really the woman as an individual.

In this sense, rape is no different than any other "law," which, originates as a manifestation of social values or beliefs. I think the irony of the current situation is that the original values rape laws were designed to protect are so wholly different from the values people purport them to assert today (even if statistics may demonstrate that in practice rape laws operate along racial lines).

Of course, I don't really share the same reaction that you do Mike in regards to "obstructions" to creative or realistic thought. First, I don't think the law is supposed to be unemotional. On the contrary, I see the law as a codification of societal values and a means and structure of imposing those values. Social values are inherently emotional.

-- MatthewZorn - 05 Apr 2010

The comment I made was in response to whether a girl could ever give consent if she is drunk. I think that one of the main determinations of rape is the gender of the parties involved. Looking at the drinking scene, when one of my male friends sleeps with a girl, and he knows that he would not have slept with her if he were sober, there is never any talk of date rape. However, if a girl experiences the same situation, rape is immediately relevant.

In our society we expect rape mainly to be a male raping a female. Look at one of my favorite movies Wedding Crashers-- Vince Vaughn gets legitimately raped by his girlfriend but we are supposed to see it as a joke. Had it been him forcing himself on his girlfriend, in the exact same way and under the exact same circumstances, we would see the act as despicable.

Again, this post is not to prove my point from class but to ask why the comment garnered such negative attention.

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Because I am not familiar with the case you're referring to or the comment you made, I can only speculate as to why your comment generated an "emotional" response. 1 in 6 women (to speak nothing of male victims) have experienced attempted or actual rape in this country. Talking about rape may trigger PTSD. Furthermore, in a culture where victim-blaming is often considered acceptable, it's certainly a topic that makes people defensive. But I don't think defending an alleged rapist is taboo; the right to counsel and fair trial extends to this group of defendants as well.

-- EricaSelig - 04 Apr 2010

-- MikeAbend - 04 Apr 2010 When we went over rape in our criminal law class, I made a comment about the role gender plays in our society in determining the definition of "rape". While I still believe in the truth of my comment, I realized immediately that I had not made any friends because of it. I could hear whispers around me and I knew that many thought I had crossed some sort of line. My comment was fairly benign, but many of my classmates still saw it as insensitive and possible chauvinistic.

I am not writing this to try to vindicate my comment. My frustration is because the topic of rape was such an emotional issue that there was no room, even within the halls of an academic institution as prestigious as Columbia Law School, to discuss the topic in an academic manner. I felt like even considering defending the side of the alleged rapist was an obvious taboo, something to be hidden like an unconscious racist assumption. The law is supposed to be inherently unemotional, but people refuse to treat it as such when discussing this specific topic.

My question is why? Why did my classmates refuse to see both sides of the issue, as we do for every other issue? Why do we make such topics so personal even when we are trying to look at them as lawyers? How do we remove ourselves to make sure that justice, rather than emotional judgment prevails? (although the two are not mutually exclusive).

I believe that the underlying social structures that affected the rape discussion also control discussion of sensitive subjects such as race and sexual preference. Until we eliminate these unnecessary obstructions to creative and realistic thought, we will never be truly free to consider the issues as we were meant to.