But asking students to challenge each other in discussions of rape law has become so difficult that teachers are starting to give up on the subject. About a dozen new teachers of criminal law at multiple institutions have told me that they are not including rape law in their courses, arguing that it’s not worth the risk of complaints of discomfort by students.
So when, a few years hence, you ponder why your lawyer doesn’t seem to have a clue what the law is, you know why. But rape law is rather specific, even if it should be part of the curriculum. What about an issue that’s far more pervasive, far more fundamental, to criminal law: eyewitness identification? Via David Lat at Above the Law*:
Here’s what one source told us about Indiana Law professor Aviva Orenstein’s ill-advised attempt to teach a lesson about eyewitness identification:
An evidence professor at IU Law has apologized after she faked an angry intruder in order to prove that eyewitness testimony is not always trustworthy. People called 911 and hid under desks, and rumor has it at least one student left through the emergency exit.
Some person no one had seen before (maybe a relative?) played the intruder. The guy came in and said “Aviva Orenstein!” … slowly approached her … “You are the woman responsible for taking away my children!” She said, “No no, not in here!” and escorted him into the hallway.
A handful of students followed her out there to make sure she’d be OK. That’s when one student called 911.
This demonstration is a classic, done in evidence and psychology classes for decades without incident. No more. Orenstein, smelling the triggering wind of fear, apologized for doing what she was paid to do.
Dear Evidence Students,
I want to sincerely apologize because of the fear and concern I caused in our classroom today. Given recent events in other universities, it makes sense that an angry intruder would be a cause for concern and real terror. I feel terrible that I clearly upset students and that it interfered with your learning, sense of safety, and well-being. Although I had planned to do some follow-up regarding the eye-witness identification, I have decided not to pursue it.
Please feel free to talk to me about this. I didn’t fully appreciate the problem until some students spoke to me after class and let me understand how harmful and terrifying the incident was for them.
Obviously, my goal is for our classroom to be a safe and welcoming environment. I cannot tell you how distressed I am that what I hoped would be a memorable example about the deficits of eyewitness testimony ended up being an frightening and painful episode.
Please accept my apology and my assurance that nothing like this will ever happen again in our class or future classes.
Her goal is a “safe and welcoming environment”? Because an educational environment would make her babies cry? Or to be more precise, would make her students attack her for making them afraid. Safe spaces aren’t just for college students anymore. Even law students need Play Doh and a puppy.
Some will point to school shootings as having changed everything, but that’s a nonsensical reaction. There was no weapon, no threat. Indeed, Orenstein made it about “taking away my children,” and led the man out of the classroom. This isn’t a threat, except to someone who thinks everything is a threat.
That some students showed concern for Orenstein isn’t a bad thing; it was quite thoughtful that some had the fortitude to make sure their prawf was safe. To the extent that they followed her to be sure she would be okay, it reflected both their concern and their guts. They didn’t ball up in a corner and whimper.
But calling 911? To say what, there was an argument? And to run away because it was “terrifying.” Yet, Orenstein’s apology, insipid though it was, failed to mollify the special snowflakes.
Lots of people emailed her being ticked off. Even after she apologized. Imagine, for instance, if someone really thought she was in danger and hurt the actor. So many things could have gone wrong.
Imagine! So scary. How many will claim that they suffered PTSD from having been subjected to this horrifying demonstration. So many things could have gone wrong!
Something did go wrong. Very wrong. A class will never grasp the frailty of eyewitness identification testimony because it was too terrifying. So what if a generation of law students before them managed to see, and survive, the same demonstration? How does that change the expectation that they are entitled to go through law school, go through life, without ever feeling anything unsafe?
That the demand for safe spaces has reached the point where a relatively benign demonstration, designed to make the students uncomfortable so that they realize the impact of shock on the ability to identify a person, can no longer be done without their crying is pathetic. You go to law school to learn how to be lawyers, not to play with puppies after a trigger warning that they may bite you in the butt. If you can’t keep your shit together long enough to handle a basic identification demonstration, what do you plan to do when you’re in the well and things head south?
It’s bad enough that law students can no longer be taught areas of law that hurt their feelings, but that a basic demonstration is no longer viable, and they’re so horribly hurt that even the apology won’t suffice, brings them to a depth of fragility that makes clear that they won’t be capable of handling the ordinary stress of law.
Have fun explaining that to your client, when their case goes in the toilet because you were too terrified to learn how to be a competent lawyer and represent them properly. But as long as you can return to your safe space afterward, even as they go into lockup, isn’t that what being a lawyer is really all about?
*For those of you who think that ATL is nothing but infomercials, infantile T&A jokes and self-promoting columnists who will fill empty pages with words from empty heads, there is still the occasional thoughtful post there. You just have to wade through a ton of dreck to find it.