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Weekend update: New paper on why "affirmative consent" (in addition to being old news) does not mean "only 'yes' means yes" 

As I explained in a recent post, the media/blogosphere shit storm over the "affirmative consent" standard Calif just mandated for campus behavioral codes displays massive unfamiliarity with existing law & with tons of evidence on how law & norms interact.  

First, the "affirmative consent" standard isn't a radical "redefinition" of the offense of rape.  It's been around for three decades.

Second, contrary to what the stock characters who are today reprising the roles from the 1990s "sexual correctness" debate are saying, an "affirmative consent" standard certainly doesn't require a verbal "yes" to sexual intercourse. It simply requires communication of consent by acts or words.

Third, for exactly that reason it hasn't changed outcomes in cases in which decision makers--jurors, judges, university disciplinary board members, etc. -- assess date rape cases.

Because members (male & female) of certain cultural subcommunities subscribe to norms in which a woman can "consent" to sex despite saying "no," decisionmakers who interpret facts against the background of those norms will sill treat various forms of behavior -- including suggestive dress, consensual sexual behavior short of intercourse, etc.-- as "communicating" that a woman who says "no" really meant yes.  

When those individuals apply the "affirmative consent" standard, they reach the same result that they would have reached under the traditional common-law definition -- or indeed that they would have reached if they were furnished no definition of rape at all. 

Today I happened to come across an intersting new paper that presents a review of the literature on these dynamics & that adds a relevant analysis on how cultural norms influence testimony of the parties.

In Honest False Testimony in Allegations of Sexual Offenses, J. Villalobos, Deborah Davis, & Richard Leo explain why the same norms that influence decisionmakers' perceptions of "consent" in date rape cases--including ones in which a woman says no--are likely to shape the perceptions of the parties, whose conflicting "honest" testimony will create doubt on the part of decisionmakers. This dynamic, they conclude, helps explain why "cultural predispositions often outweigh legal definitions of sexual consent when individuals make assessments of whether consent has been granted."

People genuinely interested in this issue might want to read it.  

Those playing the stock characters in the media remake of the 1990s (and earlier) reform debate probably won't-- if they had any interest in what the law actually is and how social norms have constrained enforcement of reform formulations of rape, they'd have already been familiar with much of this literature & would have recognized that their positions are actually divorced from reality.

Again, changing behavior on campuses requires changing norms.  Moreover, rather than being an effective instrument for norm change, legal reforms--including affirmative consent standards-- have in the past been rendered impotent b/c of the impact that norms have in shaping decisionmakers' understanding of what those standards mean.

This is a hard issue.  

Maybe a reform like Estrich's "no means no" standard-- an irrebuttable presumption that uttering "no" constitutes lack of consent-- would actually change results by blocking decisionmakers' reliance on contrary social norms.  There's some experimental evidence that this is so.

Or maybe (as some argue) it would produce a backlash that would further entrench existing norms.

Accordingly, maybe the emphasis should be on trying to promote forms of behavior that, through one or another mechanism of social influence, will change norms on campuses.  

That sort of thinking is likely the motivation for the Obama Administration's new "It's on Us" social marketing  campaign.

But one thing is clear: nothing will change if people ignore evidence -- on what the law is, on social norms, and on what real-world experience shows about how the two interact -- and instead opt to engage this issue through platitudinous claims the only function of which is to signify whose "team" people are on in a culture conflict only tangentially connected to the problem at hand.


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Reader Comments (2)

Extensions of civil rights, from the elimination of slavery onward, have occurred with legal backing. Nothing would have been accomplished if we waited on societal consensus of social norms.

I think that the paper you (just happened to come across???) rightly draws parallels between date rape and domestic violence cases. This involves work to ensure that the responding police are responsive to victims needs, but at the same time, also aware of what could be called "cultural cognitive" tribal responses. Thus, it is well known that when police arrive on the scene (perhaps called in by neighbors, but even when called by the victim themselves) the victim is likely to kick into "stand by the perpetrator/partner" mode. First, structures for protection of victims must be in place. Coverups, as have obviously been recently brought to light in the cases of NFL players, need to be brought to light. Mechanisms that both protect victims and get them to take proactive steps away from potential violence need to be implemented. Figuring out how to handle the cultural cognitive biases of our law enforcement agencies is an important component of the battle: This aspect applies to College and University administrators also. How many were frat boys themselves? In the case of women, I think that it needs to be taken into account that denial is an effective protective mechanism that allows some women to feel safer.

"No means no" is a needed standard, but one that generally occurs late. Ideally, couples ought to discuss such things as their longer term intentions in the relationship, and details such as birth control and potentials for sexually transmitted diseases well before copulating. The official mechanism for this back in the day used to be a marriage license (which, way, way back before the magic of antibiotics, actually included a blood test for disease). Which, even then, was a standard observed more after the fact than proactively.

I think that an affirmative consent standard is a driving force to get colleges and universities to create educational and support programs that get young people to conduct advance conversations. Intelligent young couples will realize that a collective advance trip to the local student health office is beneficial for both. I agree that the nonverbal component of these standards makes them difficult to enforce. But these are also not protective of the institutions. I believe that the nonverbal component will fall by the wayside.

At institutions like Yale, Sexual Misconduct Policies are being implemented and revised. I think that it is important to note that a key participant in this process is the Title IX administrator. Colleges and Universities are obviously reacting based on their need to protect themselves from legal actions. On a separate comment I noted that it was an insurance company that holds policies for fraternities that was issuing an advisory of "get those drunken women out of the house". (They could have said "Don't get drunk", but I suppose that was a bridge too far.)

For institutions, I think this is going to be partially solved in "The American Way". That is to say, by fear of liability lawsuit. In turn, the educational processes implemented by Colleges and Universities interested in self protection are likely to change, to a significant even if not total extent, attitudes in society at large. Jury compositions will change over time. Certainly efforts to change social norms helps. Especially those that get people who know when rape is happening to take action.

But for society to understand the need to protect victims, the extent of victimization must be realized. This means that there must be a legally protected environment within which victims feel able to step forward.

October 5, 2014 | Unregistered CommenterGaythia Weis


Dreadfully sorry. Your " (just happened to come across???)" query alerted me that I had linked not to the new Honest False Testimony in Allegations of Sexual Offenses by J. Villalobos, Deborah Davis, & Richard Leo but to my own old old paper on norm-constraints on reform & backlash.

I'm not as convinced as I was when wrote that paper that a "no means no" standard would generate such an effect. The CCP mock juror study suggests that that is not true. So I'm really unsure about that.

October 5, 2014 | Registered CommenterDan Kahan

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