Everyone protesting this would flunk out of law school

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April 8, 2013 by Julia

Professor’s Rhetorical Question About Rape Draws Firestorm of Protest

Last month Steven Landsburg, an economist at the University of Rochester, published a post on his personal blog laying out a series of hypothetical public-policy “dilemmas.” Anticipating the usual abstract debates with his community of regular readers, he set forth three rhetorical queries.

Question 3, after a few days, went viral. Should rape be illegal if the victim is unconscious, the professor wrote, and if no physical harm results?

Okay, so, a professor has challenged readers with a hypothetical situation.  That sounds like literally every single law school class on substantive law I ever attended.  The point is to teach students (and, in this case, blog readers) to apply, consider, rationalize, justify, and/or modify broad moral and legal statements in the face of specific factual examples.  So what’s the problem?

This week students and alumni are urging the university to censure the professor based on those remarks; others beyond the campus have called for him to be fired. The outcry has zeroed in on a particularly provocative statement: “As long as I’m safely unconscious and therefore shielded from the costs of an assault,” Mr. Landsburg wrote in the post, “why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits?”

Daniel Nelson, a doctoral student in the university’s English department who drafted the petition, summed up the angry reaction this way: “We feel like this is just too much. A line has been crossed.”

The professor’s comments are offensive, Mr. Nelson said. But more troubling, he added, is that they could be harmful: “We’re worried that a professor who teaches hundreds of students, who was voted professor of the year, and is in a position of great power and influence, is telling the community at large that rape might be OK.”

Seriously?  SERIOUSLY?  A dude pursuing a doctorate in English cannot understand the purpose and character of a hypothetical?  All this tells me is that a doctorate from the University of Rochester in English is a worthless piece of paper, because obviously critical thinking skills are not required to earn it.

 In order to test the community’s understanding of, and commitment to an answer to, a question such as, “What constitutes harm?” this professor wrote a hypothetical situation and asked some questions:

Let’s suppose that you, or I, or someone we love, or someone we care about from afar, is raped while unconscious in a way that causes no direct physical harm — no injury, no pregnancy, no disease transmission. (Note: The Steubenville rape victim, according to all the accounts I’ve read, was not even aware that she’d been sexually assaulted until she learned about it from the Internet some days later.) Despite the lack of physical damage, we are shocked, appalled and horrified at the thought of being treated in this way, and suffer deep trauma as a result. Ought the law discourage such acts of rape? Should they be illegal?

C. I’m having trouble articulating any good reason why Question 3 is substantially different from Questions 1 and 2. As long as I’m safely unconsious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits? And if the thought of those benefits makes me shudder, why should my shuddering be accorded any more public policy weight than Bob’s or Granola’s? We’re still talking about strictly psychic harm, right?

D. It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies. Every time someone on my street turns on a porch light, trillions of photons penetrate my body. They cause me no physical harm and therefore the law does nothing to restrain them. Even if those trillions of tiny penetrations caused me deep psychic distress, the law would continue to ignore them, and I think there’s a case for that (it’s the same as the case for ignoring Bob McCrankypants’s porn aversion). So for the issues we’re discussing here, bodily penetration does not seem to be in some sort of special protected category.

E. One could of course raise a variety of practical issues. If we legalize the rape of unconscious people, we will create an incentive to render people unconscious. If you answered Question 3 differently than you answered Questions 1 and 2, was it because of this sort of thing? Or do you see some more fundamental difference among the three cases?

F. Followup question: If your answer depends on the (perfectly plausible) assertion that the trauma from learning you’ve been raped is of a different order of magnitude from the trauma suffered by Bob and Granola, would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?

It is abundantly clear to anyone exercising critical thinking skills (which, we have already established, rules out anyone enrolled in the English doctoral program at the University of Rochester) that Professor Landsburg is making us 1. define “harm”; 2. explain the specific attributes of rape that make is a punishable offense; and 3. defend the answers to 1 and 2 consistently.  Newsflash: this is how teaching works at the university level.  One of the purposes of higher education is should be to challenge students to think more broadly, and to develop internally consistent patterns of argument.  Of course, that is NOT what today’s academic crusaders want to do.  Rather, universities should make us all think alike, and no one should ever be challenged lest they become offended, because there is an absolute prohibition on making others offended in the Constitution (right?).

Mr. Nelson and the self-righteous feminist mafia don’t want students or blog readers to be challenged.  Who cares why we say rape is wrong, as long as we say it, right?  Who cares how we define “harm,” as long as anything exprienced by a woman at the hands of a man is harm, right?  Who cares if students can consistently articulate the core concepts of his or her position as long as those positions are the correct ones, right?

This theory of college education does students a huge disservice.  Forcing people to defend and define their positions in the face of hard hypos (to use the law school abbreviation) teaches them how to think–which ought to be the entire point of higher education.  Coddling students in little bubbles of happy, fluffy, inoffensive identity politics eschews that purpose, creating a generation of shallow-thinking, talking-point-parroting zombies who crumble under tough questions in the real world.  I guarantee that if your only response to a tough question is, “Only a sexist would ask that question!” you will lose the debate (well, I guess it depends on who is judging).

Oh, yeah, academic freedom.  I didn’t even touch that issue because it is so abundantly obvious that posing a hypothetical and asking questions about it, regardless of the content of the hypo, is protected that only a University of Rochester English doctoral candidate could think otherwise.


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