Criminal law: learning and teaching and distressing subject-matter

[This post also appears on my education blog, Ed Lines, which deals with matters relating to learning in law.]

There have been some rumblings recently about an examination question appearing on the undergraduate Criminal Law paper at Cambridge University. In format, it is a standard problem style question, typical for a law paper. The scenario concerns initiation rituals associated with a fictitious University drinking society, and the content is both violently and sexually graphic. The scenario has been picked up in a variety of media (here is one example; for links to others, see Sebastian Salek’s blog, in which you can also view the scenario: – TRIGGER WARNING: AS MENTIONED, THE SCENARIO IS VIOLENTLY AND SEXUALLY GRAPHIC.)

 

For the purposes of this post, I’m not so interested in the specific content of the Cambridge question. It did however get me thinking about some of the more general issues around how we approach learning and teaching where the subject matter is distressing. The study of law generally, and criminal law specifically, brings unavoidable encounters with troubling content, although, of course, this is not unique to law. Does and should the troubling nature of subject-matter affect our approach to it in our work with students?

 

I’m thinking of criminal law here, but the ideas may be transferable. There are a number of considerations. As a general principle we cannot and should not shield students from distressing realities. We may make a reasonable academic decision that the coherence and integrity of the curriculum calls for the inclusion of certain disturbing content. We may also make a reasonable decision that learning about that content is necessary for students’ development of professionally relevant content knowledge, and for fostering their professional resilience. It is proper that those decisions are defended robustly. Nonetheless, we also need to be mindful that students may bring with them a range of experiences of the distressing realities of criminal law, including experiences of victimisation. We should also be attentive to those aspects of our own practice which can, however inadvertently, compound the distress of vulnerable students. I have in mind here an aspect of the orthodox pedagogy of criminal law – its focus on rules and appellate decisions which subordinate the experiences of individuals to the learning of abstract doctrine. I also have in mind our (understandable) tendency to subscribe to that orthodoxy. I am sure that many academic colleagues – not just in criminal law – will have experience of advising students to ‘focus on the rule, not the facts’. In this paradigm, facts – and the experiences they capture – are relevant, but only insofar as they illustrate a broader principle. In most contexts, this approach is informed by the structure and philosophy of the broader curriculum. Teaching in such a way as to avoid ‘involvement’ with facts (real or otherwise) may also be a coping strategy. For example, designing some humour into a seminar problem may be a way of avoiding having to face up fully to its otherwise distressing nature. So, there are a number of reasons why facts, and by extension, experiences, may be marginalised. But if these reasons (which may well be defensible) go unexamined, we may add unnecessarily to the difficulties experienced by already vulnerable students. I remember with discomfort learning that a student in a seminar some years ago on the criminal law of murder had a close relation who was a victim of homicide. I can only imagine how the student might have been feeling during that seminar.

 

So, I suggest that in relation to distressing content we may in some circumstances need a response which goes beyond the matter of fact ‘it’s on the module, you need to learn it’. What strategies might we put in place? There is an interesting literature out there which approaches the issues in a far more sophisticated way than I do here – see for example, Mary Heath, 'Encounters with the Volcano: Strategies for Emotional Management in Teaching the Law of Rape' (2005) 39 The Law Teacher 129-149. For now, how about the following, some of which are to do with classroom practice, others to do with programme design:

 

  1. Give students fair warning about the content of the module. Avoid distressing surprises.
  2. Establish, in advance, clear protocols for the discussion of distressing issues, which avoid students being put ‘on the spot’, and in which views can be freely discussed, but are not immune from challenge. When issues arise, refer to protocols for guidance.
  3. Be flexible – be alive to the need to build in additional / ad hoc breaks to allow space for the management of tensions.
  4. Think about the usefulness of a contextualised / interdisciplinary approach, to provide a policy, social, philosophical etc context in which the legal rules can be situated. Enable students to explore not just what the rules are, but how and why they matter.
  5. Think about the broader curriculum and the availability of clinical opportunities and the extent to which we can enable students to see and learn about experiences of law (other than / in addition to their own) close up.

 

In some shape or form, all of these ideas are out there in the literature. I am not claiming to be breaking new ground here. I have not worked through these ideas especially thoroughly for myself yet, but my instinct is that they are not especially radical. There are many reasonable versions of legal education, but all of them will at some stage involve an encounter between students and distressing content. Our attentiveness to these encounters is a matter of respect for students; it is also an opportunity to reflect on how we might enrich the learning of all students, regardless of their particular personal experiences.

 

 

An afterthought on the Cambridge question: I wonder what the story is actually about. Although the headlines attest to the apparently horrific nature of the question, there is no collective, unequivocal sense in the reporting that it was unacceptable. One thing is for sure: over the years, many criminal law academics will have set many questions depicting, with greater and lesser degrees of authenticity, the sad reality of sexual and violent offences without attracting the interest of the local paper, never mind the international media. Perhaps the context of privilege and decadence involving the fictitious University drinking society was what really attracted interest. I wonder to what extent the hullabaloo in relation to the Cambridge question reflects some broader themes in the media relationships with crime. The more ‘interesting’ the context, the more newsworthy the behaviour. This is an important issue, and well beyond the scope of this post. Suffice to say for now that social constructions of crime and criminal law, themselves in part informed by media treatment, feed into our understandings of what 'counts' as crime, and who 'counts', for example, as a 'real' victim. This in turn can inform how we and relevant agencies respond to crime. Which informs how we construct learning and teaching in criminal law … .

 

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2 comments

  1. […] If you find it distressing, talk to somebody – a lecturer or tutor, or a friend. I have written here about what I think some of the responsibilities of your lecturers might be in this context. […]

  2. […] If you find it distressing, talk to somebody – a lecturer or tutor, or a friend. I have written here about what I think some of the responsibilities of your lecturers might be in this context. […]

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