A low-profile lawsuit at the University of Virginia School of Law could make professors liable for the childhood traumas of their students.
Professor Kenneth S. Abraham, one of the most respected legal scholars in America, is being sued because a routine classroom demonstration sparked a student's memories. Abraham knew nothing of student Marta Sanchez's traumatic history. Nevertheless, her lawsuit argues that "he knowingly intended to cause her harm."
Here are the facts.
During an introductory program last August, Abraham demonstrated a legal principle known as the "egg-shell skull rule" from Vosburg v. Putney, a case commonly taught in torts classes.
In Vosburg, one child was seriously harmed by a mild kick to the shins by another. The second child was found responsible for all damages even though no one could have predicted such severe harm. Abraham announced his intention to show the class of about twenty students how a slight contact could be actionable. Then Abraham briefly touched Sanchez on her fully clothed shoulder.
She describes the momentary contact as a "caress." He characterizes it as a "tap." Former students confirm that the shoulder tapping is a standard part of Abraham's lesson on Vosburg.
Sanchez says the tap flooded her with memories of being terrorized, raped and molested when she was 11 years old and living in her native land of Panama. After Abraham's touch, she sought counseling at the Sexual Assault Resource Agency. Upon learning she had another class with Abraham, Sanchez complained to university administrators, who recommended that she speak with the professor.
The conversation did not satisfy Sanchez. On Feb. 26, Sanchez filed a civil complaint in the circuit court against Abraham in which she alleged assault and battery. According to the March 22 edition of the UVA student paper, Virginia Law Weekly (at which Sanchez is associate features editor), the complaint includes the following allegations:
— In front of twenty students, Abraham "rubbed" Sanchez's shoulder after having announced, "You might not like this, but I am going to do it anyway."
— The touch put Sanchez in "reasonable fear of physical injury."
— She subsequently experienced emotional suffering, as well as migraine headaches and a "periodically upset stomach" due to "the tension" caused by Abraham.
Sanchez is asking for $25,000 compensatory and $10,000 punitive damages from Abraham for bringing to the surface her fear of men with authority. Sanchez's lawyer Steven Rosenfield has reportedly served state Attorney General Jerry Kilgore with notice that the Commonwealth of Virginia may be liable as well.
The university and Abraham declined to comment. But various UVA law professors have gone on record with their fears of how the lawsuit will chill academic freedom to the bone.
If Abraham's relatively mild "Introduction to Law School and Legal Methodology" ignited such passion, then how much more risky is criminal law? Professors are at a loss as to how they can approach the many emotional issues that must be addressed explicitly in class: child molestation, domestic violence, the death penalty — to name but a few.
Anne Coughlin, a UVA criminal-procedure and feminist-theory specialist, explains: "Given the stuff I teach, this scares me out of my wits. I have to talk about issues that are much more explosive than a torts suit. I teach rape and police brutality ..."
In 2000, Abraham was named UVA's All-University Outstanding Teacher. One reason was because he made himself accessible to students. Richard Merrill, dean of the UVA Law School from 1980 to 1988, comments of Abraham, "Even though he is one of the most widely published professors, he has always taught to a wide array of students."
Yet, 2001 may be the last year Abraham willingly teaches an introductory tort class to new students; or perhaps he will merely become less effective by becoming more distant.
According to the March 27 Daily Progress, Sanchez reportedly "shrugs off" concerns such as the chilling of free speech in the classroom.
"It was basically killing me not to do anything [about the touch on her shoulder]," Sanchez said. "I was feeling worse and worse, because I knew I was wronged."
Referring to the brutal attack boxer Mike Tyson made upon his rival Evander Holyfield, she explained, "To expect I wouldn’t be bothered by this is to expect Holyfield not to be bothered by Tyson biting his ear."
Abraham is not responsible for Sanchez's past trauma: He was trying to help her understand a legal concept. And, if a pre-announced tap on the shoulder in the presence of 20 other people left Sanchez in "reasonable fear of physical injury," then she is too fragile for the intense challenge of law school.
If Sanchez wished to hunt down and rain hard justice on the animals who raped her as a child, I would applaud. But she is not doing this. She is hunting down a good professor who knew nothing of her past and who — by any reasonable standard — has done her no harm. Quite the contrary. He tried to teach.
Yet, to punish Abraham, Sanchez seems willing to harm freedom of speech and to risk the academic excellence of a highly respected law school. If she is successful in holding Abraham responsible for her own pre-existing psychological damage, then she will punish all of us by lowering educational excellence.
Wendy McElroy is the editor of ifeminists.com. She is the author and editor of many books and articles, including the forthcoming anthology Liberty for Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.