Oxford University law students have asked to be protected from distressing material that may crop up in their studies of the criminal law. Lecturers have been told that they must issue “trigger warnings” before lecturing on subjects that may – it is claimed – lead vulnerable students into depressive episodes or even suicide. Students thus forewarned can either steel themselves to what follows, or, as some are now doing, skip the lecture altogether. The directive is primarily aimed at students studying criminal law.
When the story was published at the weekend I tweeted that Oxford students seemed delicate flowers.
Did they really think that studying the law was just about the Leasehold Enfranchisement Reform Act 1967? Giorgia Litwin, an Oxford law student and a strong supporter of such warnings described this as a “Twitter hate campaign.”
On the face of it the students’ pressure for “trigger warnings” sounds perfectly reasonable. The more moderate advocates, as represented by Ms Litwin, argue that the warnings are not intended to prevent people being offended, they are a proportionate response to the fact that some students will suffer real trauma when they learn the terrible facts of some criminal cases. Very few law lecturers want to upset their students, so to give a brief warning before discussing the details of the case law on sexual offences is nothing to which anyone could reasonably object.
But universities should resist the pressure. Trigger warnings will do little to protect the vulnerable and the growing demand for them constitutes a real and insidious threat to academic freedom.
Anyone hoping to study law knows before they start that criminal law is an unavoidable part of the syllabus. Many lawyers can be rather sniffy about the criminal law: there isn’t much money to be made from it and many would rather spend their time drafting international collateral securities. Nevertheless, it is universally accepted, and for very good reasons, that to qualify as a lawyer, or even to pass a law degree, you need a basic grounding in criminal law. A lawyer who knows nothing about about criminal law would be the equivalent of a doctor knowing nothing about blood, and gaining a law degree without studying criminal law would be like achieving an MB without ever opening a cadaver.
Learning the criminal law involves hearing and reading about people behaving nastily, and sometimes quite unspeakably to each other. Indeed, for many that is part of its appeal. After a few hours struggling with fee simples and resulting trusts, most law students find it a great relief to read about the robbers, murderers and rapists who populate the racier pages of the Criminal Appeal Reports. As every great novelist knows, greed, lust and sin of all kind is generally fascinating, even when it is disturbing to read about.
At present the Oxford students seem to be most bothered about lust. They are demanding trigger warnings before lectures on sexual offences, pointing out the potentially traumatic effects on rape victims when they hear about graphic details of sexual offences. Even if we accept that vulnerable students can be harmed by talking about distressing cases (and the evidence is at least as strong that they are likely to be harmed by avoiding such talk), once the principle is conceded there is no obvious place for them to stop.
It is not just rape: if you have been traumatised by a burglary hearing the details of legally significant burglaries may be intensely upsetting.
Take the extraordinary case of Collins  QB 100, still a leading authority on what constitutes an “entry” for the purposes of a burglary. Mr Collins climbed naked, apart from his socks, onto a girl’s bedroom window-sill; that alone would send shivers down the spine of burglary and rape victims alike. Lord Justice Edmund-Davies described what happened next:
“The young lady then realised several things: first of all that the form in the window was that of a male; secondly that he was a naked male; and thirdly that he was a naked male with an erect penis. She also saw in the moonlight that his hair was blond. She thereupon leapt to the conclusion that her boyfriend with whom for some time she had been on terms of regular and frequent sexual intimacy, was paying her an ardent nocturnal visit.”
Mr Collins was invited into the room and indeed into the girl’s bed before she realised he wasn’t her boyfriend. In fact the case turned on the dry issue of which side of the window-sill he was on when the invitation was issued, but it would be absurd to warn students that they might prefer not to know about such a seminal case, although a trigger warning is amongst other things an invitation to delicate students to leave the lecture hall.
Nor is it just in the criminal law where nasty facts will need to be considered. Victims of road accidents may be traumatised by negligence cases, students from unhappy families may find cases on family law horribly close to the bone, and so on. Vast areas of law are riddled with horrible cases, any of which are likely to be potentially upsetting, or “triggering” to someone.
And if real facts can trigger, so too can the often deliberately florid problems set in law exams. Criminal law exams invariably have questions involving Hogarthian scenarios of debauchery:
“Albert gets drunk and has intercourse with a sleeping Bertha who is aged 15 under the impression that she was actually his girl-friend Charlotte, whereupon the temporarily insane Charlotte appears on the scene and shoots Albert dead whilst aiming at Bertha. Advise.”
Examiners will soon have to offer strictly bowdlerised questions in order not to disadvantage those who would prefer not to think about the seamier side of life and death.
Will lecturers be expected to anticipate every case in which a trigger warning must be issued? Are law lecturers to become amateur psychologists and predict in advance the topics that may conceivably cause trauma to their students?
This is why the call for ever more trigger warnings is so chilling to academic freedom. Who is to say what facts may be deemed triggering? The answer is that only the “traumatised” student can say, but woe betide a teacher who fails to anticipate it. Who will want to be the lecturer who strays into a “triggering” area without first issuing a warning, thereby risking the wrath of his or her students, and perhaps of the university too? This is not just speculation. Already, the Harvard law professor Jeannie Suk has warned that young law teachers are steering away from teaching about sexual offences because it is “not worth the risks of discomfort by students,” and at Harvard some law teachers are considering dropping rape law from their syllabuses. Where Harvard leads, Oxford often follows, but to do so on this issue would be an absurd folly.
The whole point of a university is that it is an institution in which students and academics can engage in free and uninhibited discussion. Nowhere is this more important than in the subject of legal education, which involves much more than being told what the law is.
It is at university that the lawyers and judges of the future ought to be asking the difficult questions that are central to any serious consideration of the law of sexual offending: What does “consent” mean? To what extent can – or should – children or the mentally ill be able to consent to sexual activity? How should complainants and sex offenders be treated by the courts? How does our legal system deal with false allegations? Shying away from questions like this will not produce better lawyers. It will produce a generation of infantilised milquetoasts who believe they have a right to avoid difficult arguments instead of engaging with them; it will help to select exactly the sort of men and women who are least suited to the practice of the law which almost by definition involves having difficult, important and sometimes distressing arguments.
This post was first published in the Daily Telegraph 11th May 2016