I've been pondering the resurgence of attention to & controversy over the standards used, in the law generally and in particular institutions such as universities, to assess complaints of sexual assault. I'll post some reflections next week, and also a guest blog from a scholar who has done a very interesting study on how cultural norms might be constraining the effectiveness of investigations of sexual assault complaints in the military. But by way of introduction, here is an excerpt from Culture, Cognition, and Consent: Who Sees What and Why in Acquaintance Rape Cases, 158 U. Penn. L. Rev. 729, a paper from way back in 2010 that reported the results of an empirical study of how cultural norms shape pereceptions of disputed facts in date rape cases and disputed empirical claims about the impact of competing legal standards for defining "consent."
Does “no” always mean “no” to sex? More generally, what standards should the law use to evaluate whether a woman has genuinely consented to sexual intercourse or whether she could reasonably have been understood by a man to have done so? Or more basically still, how should the law define “rape”?
These questions have been points of contention within and without the legal academy for over three decades. The dispute concerns not just the content of the law but also the nature of social norms and the interaction of law and norms. According to critics, the traditional and still dominant common law definition of rape—which requires proof of “force or threat of force” and which excuses a “reasonably mistaken” belief in consent—is founded on antiquated expectations of male sexual aggression and female submission. Defenders of the common law reply that the traditional definition of rape sensibly accommodates contemporary practices and understandings—not only of men but of many women as well. The statement “no,” they argue, does not invariably mean “no” but rather sometimes means “yes” or at least “maybe.” Accordingly, making rape a strict-liability offense, or abolishing the need to show that the defendant used “force or threat of force,” would result in the conviction of nonculpable defendants, restrict the sexual autonomy of women as well as men, and likely provoke the refusal of prosecutors, judges, and juries to enforce the law.
This Article describes original, experimental research pertinent to the “no means . . . ?” debate. . . .
This Article has described a study aimed at investigating the contribution that cultural cognition makes to the controversy over how the law should respond to acquaintance rape. The results of the study suggest that common understandings of the nature of that dispute and what’s at stake in it are in need of substantial revision.
All of the major positions, the study found, misapprehend the source of the “no means ...?” debate. Disagreement over the significance the law should assign to the word “no” is not rooted in the self-serving perceptions of men conditioned to disregard women’s sexual autonomy. Nor is it a result of predictable misunderstanding incident to conventional indirection (or even misdirection) in the communication of consent to sex. Rather it is the product, primarily, of identity-protective cognition on the part of women (particularly older ones) who subscribe to a hierarchic cultural style. The status of these women is tied to their conformity to norms that forbid the indulgence of female sexual desire outside of roles supportive of, and subordinate to, appropriately credentialed men. From this perspective, token resistance is a strategy certain women who are insufficiently committed to these norms use to try to disguise their deviance. Because these women are understood to be misappropriating the status of women who are highly committed to hierarchical norms, the latter are highly motivated— more so even than hierarchical men—to see “no” as meaning “yes,” and to demand that the law respond in a way (acquittal in acquaintance- rape cases) that clearly communicates the morally deficient character of women who indulge inappropriate sexual desire.
This account also unsettles the major normative positions in the “no means . . . ?” debate. Because older, hierarchical women are the persons most likely to misattribute consent to a woman who says “no” and means it, abolishing the common law’s “force or threat of force” element and its “reasonable mistake” defense would not create tremendous jeopardy for convention-following men. Nevertheless, there is also little reason to believe that these reforms would enhance the sexual autonomy of women whose verbal resistance would otherwise be ignored. Cultural predispositions, the study found, exert such a powerful influence over perceptions of consent and other legally consequential facts that no change in the definition of rape is likely to affect results.
This conclusion, however, does not imply that the outcome of the “no means . . . ?” debate is of no moment. On the contrary, the role of cultural cognition helps to explain why the debate has persisted at such an intense level for so long. The powerful tendency of those on both sides to conform their perceptions of fact to their values suggests why thirty years worth of experience has not come close to forging consensus on what the consequences of reform truly are. Over the course of this period, the constancy of the cultural identities of those who plainly see one answer in the data and those who just as plainly see another has driven those on both sides to form their only shared perception: that the position the law takes will declare the winner in a battle for cultural predominance.
This particular battle, moreover, occupies only a single theater in a multifront war. Like the debate over rape-law reform, continuing disputes over the death penalty, gun control, and hate crimes all feature clashing empirical claims advanced by culturally polarized groups who see the law’s acceptance or rejection of their perceptions of how things work as a measure of where their group stands in society. Indeed, the same can be said about a wide range of environmental, public- health, economic, and national-security issues. It is impossible to formulate a satisfactory response to the debate over rape-law reform without engaging more generally the distinctive issues posed by illiberal status conflict over legally consequential facts.