Reconsidering Rape: Experience as the Life of the Law

Lane Feller
LANE FELER / Morningside Muckraker


It isn’t quite model law student behavior, but I rarely read the syllabus at the beginning of the semester.  Despite my bad habit, I was unsurprised when my Criminal Law professor announced that we would study rape for the next few weeks.  Really, I found it appropriate given the university setting: the Department of Justice reports one in four women on college campuses are the victims of rape or attempted rape.

“One in four” is not small potatoes.  Applied to the J.D. program, this suggests that over a hundred women and undoubtedly many men as well—our classmates and friends—are victims of sexual assault.  At the very least, the attention to rape law in the classroom has merit because rape is a statistically common crime.  But more importantly, it is one that isn’t so far-fetched that we must draw our knowledge from mere hypotheticals and imagination.

I write because I go no further than my own history for that knowledge.  When I was nineteen, I was raped by an acquaintance.  I didn’t report the incident; instead, I cut off contact and sought counseling because it felt like doing something was better than doing nothing.  I remember little of the encounter, and frankly that makes me feel lucky.  That little perverted piece of positivity made what happened an anomalous but not ever-looming event in my life.

Because to say the experience ruined me would be a lie.  It did nothing of the sort.  What it really did was hone me.  I read recently, “Grief does not change you … It reveals you.”  I would say that if you are able to get out of the initial stage of disbelief, shame, and self-blame—able to push past the hurt—that’s incredibly accurate.  Difficult experiences, though not desired, allow us insight into ourselves and into others that we wouldn’t otherwise have.

The law, to me, is a fascinating thing.  We study it within the confines of an ivory academic tower (a generous description of Jerome Greene Hall, I know).  But for all its abstract facets, its tangibility is undeniable.  It doesn’t necessarily register until you complete those pesky pro bono hours, or panic in chambers over the draft of a judicial opinion, or submit paperwork for a client you have no business representing after only one year of law school.  Our legal practice tells us the law is more than ancient cases printed in a book.  It manifests itself in so many ways, shaping how society operates and how we act.

The rape unit was the first time I have ever felt so keenly the disconnect between law in theory and law in practice.  I highly doubt I was the only student in the room who could offer some personal experience to the class.  In fact, I know I was not.  Yet I did not open my mouth once.  Nor did anyone else, save the inevitable cold call.  There we sat, discussing that in New Jersey a simple thrust satisfies the force element.  My professor even provided a perfect opening regarding the problem of sexual assault on college campuses, and I sat silently.  But so did everyone else.

The law is all wrinkles and complexities, particularly with respect to rape law.  But what keeps us silent when personal experience might provide insight?  If you had Legal Methods with Professor Bobbitt, surely you remember that the well-loved Oliver Wendell Holmes wrote, “The life of the law has not been logic; it has been experience.”  I suspect that I have been reluctant to join conversations about rape in part because I felt my experience was not quite as bad as it could have been, and therefore considered myself unqualified to offer an opinion.

But the law itself has stretched its arms to include me, too, in that class of people that can speak personally but meaningfully to what rape means in this day and age.  I am so entitled, as are many within our community.  Maybe rape is personal, maybe it carries some unwarranted taint of shame or regret or weakness some would rather forget than hash out for its academic merits.  But I hope, as idealistic as it may be, that future 1L Criminal Law scholars recognize this:  that our experiences inform our understanding, and that they inevitably inform that nebulous, dynamic thing called the law.  The nature of this profession is that we are constantly presented with opportunities to shape jurisprudence.  Modern realities with respect to rape require us to think critically and academically about existing legal norms; we must test what remains relevant and what has become outmoded.

So here is to the (still unread) Criminal Law syllabus, for inviting us to climb down from our metaphorical ivory tower.  By accepting this invitation, perhaps we will learn where the law and life are consonant and where they are not.

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