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« Date-rape debate deja vu: the script is 20 yrs out of date | Main | The more you know, the more you ... Climate change vs. GM foods »
Saturday
Sep202014

Weekend update: Who sees what & why in acquaintance rape cases?

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."


Introduction

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. . . .

Conclusion

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. 

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Reader Comments (12)

I think that this post exemplifies the difficulties in relying on polling data in which the questions can't really probe deeply into the underlying motivations and psychology of those answering the questions.

We live in a society that still maintains a severe male/female power imbalance.

One in which event such as this one still happen: http://www.rawstory.com/rs/2014/09/fraternity-dosed-women-with-date-rape-drugs-based-on-color-coded-hand-stamps-police/ And in a context in which such behavior has been condoned over time: "The UW at Milwaukee TKE chapter was investigated three times in 2013 for sexual assaults, but no charges were ever filed. Facebook postings reportedly discussed the members’ tendency to “roofie” women before Friday night’s party."

This means that when asking questions, those questions are being answered by people who may have processed/rationalized things from the past that they might have done or that might have been done to them in ways that affect the answers in unseen ways.

Many cultures lay a pretty heavy burden on women to somehow control situations that they have no control over. Never being outside the home without being accompanied by a male relative and covered head to toe in a Burqa is an extreme example.

Proving rape is still difficult. See for example the ongoing "Carry that Weight" protest at Columbia: http://columbiaspectator.com/multimedia/2014/09/02/emma-sulkowicz-cc-15-mix-performance-art-protest.

For older woman, a rape conviction clearly was possible only in cases of stranger rape accompanied by other physical violence and then only in a location in which the woman's presence could be considered innocent. So what happened to those women who did experience date rape, and how do they feel about that incident now?

More importantly, what has happened to all of the frat boys now men in positions of power? Is it any surprise that institutions, such as Universities are so slow to respond?

Like other cutural changes, racial equality and homosexual rights or womens rights in general for example, this issue does exemplify a cultural divide. One that does change for those involved by the establishment of clear legal rights.

I don't agree with the following paragraph:
"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."

Establishing a clear line in which No does mean No is essential. A clearer societal understanding that the definition of rape has changed is changing societal actions. Obviously the process is haltingly slow. But it is occuring. And thus, in some jurisdictions at least, date rape convictions can be obtained. In others, at least more victims are willing to at least acknowledge to themselves the real meaning of what may have happened to them and in some instances speak up.

September 20, 2014 | Unregistered CommenterGaythia Weis

"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 sometimes wonder if, when it's a bit quiet on the blog, you post these things to attract attention. You usually complain when you get hordes of conservatives descending to fight their wars here after you've posted something controversial, but it does liven things up, doesn't it?

Regarding *actual* rape, the most relevant institution to consider would be prisons, as the majority of rapes are carried out in them against males, especially juveniles. But for some odd reason, that doesn't seem to be an issue in the debate. Go figure...

The controversy is not precisely over the definition of 'rape', but over the shifting of the burden of evidence / presumption of innocence regarding *accusations* of rape. It's more about the legal principles of a fair trial, the consequences of having extra-legal courts/tribunals operated by private institutions, and the balance between the consequences of committing crimes and making false accusations of crimes.

This is wound up in politics through the application of the post-Marxist theory of power relationships to the gender war. It is a standard principle of totalitarian government that the State can't rule people except through guilt. The person who believes themselves innocent will resist enslavement, but the one who believes they are guilty will go along with it. So a standard method is to make more and more things illegal until it is virtually impossible to avoid breaking the rules, or even to know what the rules actually are. People who regard themselves as good, law-abiding people will at the least become anxious, stressed, and extremely cautious in their activities. And those who knowingly break the rules will feel guilty about it, and are thereafter at the mercy of those others in positions of privilege who will choose whether to let them get away with it or not. It is important for this to work for there to be no solid principles of justice on which the victim can rely, either with regard to the accusation or during the tribunal itself - they are to be completely at the mercy of the judge's whim. Knowing this, the victims quickly understand any show of defiance to be suicidal.

What's going on in American universities is basically a re-run of the Cultural Revolution, complete with show trials.

This is what the controversy is about, and what the conservatives are complaining about. I note that you linked three sources all from one side of the debate, and none from the other. Was that deliberate? Either way, it seems to have resulted in missing half the picture.

--

Although, as I say above, date rape definitions aren't really the subject of the dispute, it's maybe worth commenting on too. The problem in this case is that this particular class of serious crime is one where it is difficult verging on impossible to obtain solid proof. You can sometimes prove or disprove intercourse, but you can't prove or disprove whether consent was given, except under the sort of circumstances that would put a serious crimp into any sort of normal human negotiation about this sort of thing. (There are a few men who have survived false accusations because they recorded the proceedings on video, but that's a legally dicey thing to do anyway, and doesn't exactly get a relationship off to a good start if found out.) It's likewise hard to imagine normal people signing contracts, or insisting on a receipt.

And I don't think the young women want a world where they have to sign contracts and witness statements making definite and unambiguous commitments, before a boy will talk to them, either. It's hard enough as it is.

It's fairly well known, I think (and in this regard the study is a restatement of the obvious) that the reason that women sometimes say no when they mean yes is because of the stigma attached to being too 'easy'. Likewise, it's also moderately well known that the motivation behind a lot of false accusations is to avoid that stigma when the relationship is found out. There are also numerous cases of malicious accusations to punish a male partner if the relationship doesn't go the woman's way. And nowadays with the compensation culture, there are not a few cases of fraud, where women do it to be get hold of the compensation money. That's not to say that all or even most accusations of sexual assault or rape are false. Although it's quite hard to get hold of any solid statistics on the question, figures for false accusations seem to run between about 20% and 40%. That does of course leaves 60-80% of genuine cases that need to be dealt with. The penalties for actual rape are, quite rightly, severe.

So this leaves the young and inexperienced (and potentially socially clumsy) young male in a difficult situation. There are good reasons why women might not feel able to say what they mean during negotiations. There are good reasons to think that *some* level of persistence/assertiveness is therefore expected of them. Misunderstandings are going to happen. Normally, that would just be part of life's rich pageant, and boys would soon learn from painful experience when no meant no. However, now, they find themselves in a minefield, where the least misstep could destroy their lives *permanently*. If she says yes but is drunk, that means no. But if he's drunk, that's no excuse. If he asks her for sex when she's not keen, and she complies, that's rape. If she asks him for sex when he's not keen, and he complies, that's not. If he makes a bad decision, he'll find himself in prison, or with a permanent record and reputation and no education. It's asymmetric, arbitrary, and often disproportionate.

And that has another unfortunate effect. While it's usually the case that the young man doesn't *want* to break the rules, and is trying hard not to, it can sometimes happen that when the rules become too difficult to comply with their attitude to them will flip and they'll start ignoring *all* the rules, even the ones they *should* comply with. When the law becomes unreasonable, people lose respect for it. They don't know *what* to do, so they make their *own* rules up. It's a matter of mental self-defence.

That is, quite frankly, horrific - and just one of the more horrible consequences of this game the political feminists are playing. Of course, such tragedies are only more grist to their mill.

--

Anyway, I shall be interested (as always!) to see what you write about next week. But perhaps then you'll be looking at the empirical claims people on the *other* side of the debate are disputing as well?

September 20, 2014 | Unregistered CommenterNiV

@Gaythia:

This study suggests that a "no means no" standard might actually change trial outcomes a little. The weird thing is that no one ever proposes that -- proposes that in fact the statmeent "no" be deemed sufficient evidence of non-consent. Take a look at the standard thtat Calif is now apparently requiring be used in university disicpline codes. It's the so-called "affirmative consent" standard, which has been being pushed for 25 yrs and adopted in numerous states. There's pretty strong evidence -- in the form of reported incidence of rape, mock juror experiments, and informed observation -- that the standard doesn't change trial outcomes or behavior. But no one seems to actually care about such evidence; it makes me think that the debate isn't really about that at all....

September 20, 2014 | Registered CommenterDan Kahan

@NiV:

I guess it's been quiet. What do you make of Bobby "Brady" Jindal?

Why can I predict who will believe what about incidence of data rape & effect of legal reforms, not to mention perceive facts one way or other in disputed date rape case, based on their position on climate change?....

September 20, 2014 | Registered CommenterDan Kahan

"I guess it's been quiet. What do you make of Bobby "Brady" Jindal?"

My thought was that politicians have become expert at not answering 'gotcha!' politically-divisive questions. He knows that whatever answer he gives he'll alienate half his potential voters, so he doesn't. And that means you have no idea what he actually believes.

And that's interesting because it suggests that it isn't the politicians who are inventing this stuff - or at least not deliberately, anyway - they don't like polarised issues because it makes it hard for them to appeal to both sides. When it comes to political opinion the politicians are usually followers, not leaders.

I'm not sure what his choice of nickname says about his likely foreign policy with regard to terrorists. They were mostly scared of the US because they knew they had got more advanced weapons and training and were willing to use them. Now that everybody knows they're no longer willing, nobody's scared any more. Hence, etc.

What do you think the terrorists think of the name "Hussein"?

"Why can I predict who will believe what about incidence of data rape & effect of legal reforms, not to mention perceive facts one way or other in disputed date rape case, based on their position on climate change?...."

Because the political aims (and methods) of both campaigns are the same. Both are aimed at transferring power from 'white male conservatives' / 'rich capitalists' to politically privileged groups, by creating a socially enforced and accepted universal 'guilt' that can be used to justify imposing penalties and restrictions. Everyone uses fossil fuel energy, but only some people get blamed for it. Everyone negotiates for sex by indirect means, but only some people get blamed for it. And only they get to decide who.

Some people are in favour of that transfer of power, and some people are against it. Some people believe in equality of outcome, and that any means are justified to bring it about, and some people believe in equality of opportunity, and that people ought to be able to keep what they earn.

Some people believe mercy is the highest virtue, and some people believe justice is. (I have heard it said that the wicked favour mercy, while the virtuous favour justice, but that might just be a bit prejudiced!)

It's an old, old argument - the division into right and left goes back to Robespierre's mob in the French civil war, while the underlying themes probably go back to the dawn of history. These are just a couple of the most recent skirmishes in that long-running war.

September 21, 2014 | Unregistered CommenterNiV

@NiV:

Is there a group that coordinates "both campaigns"-- against behavior that is understood to be contributing to global warming & against coerceive sex? Are those who participate in them aware that the "political aims" of both are the "same"?

How does changing the definition of "consent" in rape law or putting pressure on universities to discipline students accused of sexual assault threaten " 'white male conservatives' / 'rich capitalists'"? & why are white female hierarchs--regardless of income the most likely to react hostilely to such policies?

Y how about gun control? The same groups, pretty much, divided on whether restricting guns increases or decreases crime. Yet wouldn't groups trying to weaken power of " 'white male conservatives' / 'rich capitalists'" want some guns? Wouldn't the 'white male conservatives' / 'rich capitalists'" want to prevent those groups from having them?

September 21, 2014 | Unregistered Commenterdmk38

"Is there a group that coordinates "both campaigns"-- against behavior that is understood to be contributing to global warming & against coerceive sex?"

I'm not aware of evidence that either campaign is being 'coordinated' - nor are the campaigns actually against behaviour understood to be contributing to global warming, nor coercive sex.

A lot of people like strawberry ice cream, and buy it in the shops. But there is no organisation coordinating this mass purchase - each individual acting on their own preferences and opinions can lead to common collective action. Nor are people doing so to protect their identity as 'strawberry ice cream eaters'.

There does appear to be this strange idea on the left that the only way people can cooperate and act in concert is if they are centrally organised to do so. They believe it about the well run economy, and the market. They believe it about charity, and health care, and all the matters on which regulation is needed. The believe it about climate sceptics - all the nonsense about oil industry funding and the Koch brothers. And they believe it about scientists making errors - that the authority of a thousand scientists could not be wrong unless there was a conspiracy.

There's no need for any conspiracy. People are perfectly capable of deciding independently on the same actions for the same reasons.

That said, I don't know that there *isn't* a conspiracy, either. The way the left keep on about it, you have to wonder if that's a guilty conscience at work...

And the campaign on global warming only claims to be about action against behaviour contributing to it. As I've noted previously here, the Byrd-Hagel Resolution explains that the true stumbling block to a global emissions treaty is the refusal of the climate activists to countenance the action necessary to deal with the problem - i.e. to make the ban on emissions truly global. Likewise, the only economically feasible solution would be to go nuclear in a big way, like France did in the 1990s - but the left have always been vehemently opposed to that, and even when they claim not to be they take no meaningful action. A genuine global emergency would have put a fast-breeder in the middle of every city.

But no. They'll support any technology that doesn't make economic sense - shovelling incomprehensible piles of public money at them to keep them going. And they'll continue to fly around the world on private jets to climate conferences and events, lecturing the rest of us about how we've got to give up our light bulbs and turn the heating / air conditioning down. As if any of that would make a difference.

Likewise, the controversy over campus sex isn't about forcible rape. Do you really think that conservatives, with their religious morals on promiscuity and their belief in tradition, duty, honour, and chivalry, really want to send their daughters to college to get raped?! That's crazy talk! Their attitude is more inclined towards arming their daughters with guns, to make sure they're not!

"How does changing the definition of "consent" in rape law or putting pressure on universities to discipline students accused of sexual assault threaten " 'white male conservatives' / 'rich capitalists'"? & why are white female hierarchs--regardless of income the most likely to react hostilely to such policies?"

It threatens males - what the feminists call the 'hegemonic patriarchal attitudes' in society. The other aspects do get involved because whether you get to survive the accusation depends partially on how much sympathy you can muster with the sort of people running the trial, but to a lesser degree. It's only one line of attack among many.

And the reason that the women are most likely to object is partially because given the social pressures the men are not allowed to - they'd be accused of self-interest in the worst possible way - and partially because it utterly destroys the methods women use to attract men.

Sexual desire evokes very strong feelings in people, sexual rejection even more so, which makes them feel emotionally vulnerable. Both sexes have developed various defence mechanisms to shield themselves from that. Men sometimes pretend a more casual attitude to sex than they actually feel. Women pretend indifference, or not to want it, and that they have to be persuaded otherwise. It gets the men nicely attentive. But of course with all this pretended indifference, they all still have to figure out who is available, and who likes who. So both sides have developed elaborate signals to make the message clear, while at the same time maintaining 'plausible deniability' about it all. Women have most of the advantages here - it's very hard to ask a girl out and then pretend you wasn't really interested. It's much easier to spend a fortune on clothes, hair, and make-up and say you're only doing it for yourself. (But much more expensive.)

Women rely on men plucking up the courage to ask, and understanding what they want and can't ask for. They rely on men being willing to take all the risks, and play the game. They understand the unwritten rules, and that if you want anyone to play the game with you, you have to be understanding of those who are still learning them.

And now these university administrators have come along and banned the game. If you want a boy, you're going to have to come right out and say so - explicitly (in the worst sense), in detail, and with no 'plausible deniability' or room to wriggle. That's incredibly embarrassing. And there's a serious danger that the nicer boys are going to take one look at the minefield they're being invited to walk through and run the other way, staying clear of the whole nightmarish mess for a few years, and the girls will be left with the sort of boy who doesn't care about rules and limits, who they will have to put up with if they're going to have anyone at all. They'll have to make themselves more emotionally vulnerable, as boys who are trying to protect themselves make more demands. And it turns what's supposed to be a private dance between lovers into a nervous public performance - bureaucrats with clipboards and rulebooks ready to criticise and severely punish any misstep.

Of course the women hate it! Especially the ones who grew up with that understanding.

'Totalitarianism' is when the State has the right (and duty) to regulate every aspect of people's lives, in both the public and private sphere. The State's jurisdiction is total. And as with all regulation, it doesn't stop people doing what they want to - it just forces it into hiding, where there are even fewer protections for the vulnerable. And there's nothing more private, and nowhere people are more vulnerable, than in their sexual relationships. I'm amazed people can't see it for what it is.

"Yet wouldn't groups trying to weaken power of " 'white male conservatives' / 'rich capitalists'" want some guns?"

No. They want the State to have all the guns. They want the people to be powerless before the state.

Everyone knows that criminals don't obey the law - it's practically a qualification for being one! - so banning guns doesn't take them out of the hands of criminals. The argument is therefore over whether the law-abiding should be allowed to have guns as well, or whether they should be entirely dependent on the state to defend them. People who believe in the right of the state to regulate and control the population generally also believe that the population should be disarmed, and that only the government should have them. People who are nervous of the government's intentions and/or dubious about their ability to protect them would rather hang on to them, thank you very much.

If you want to test the proposition, ask people whether they believe the police should be allowed to have guns? Other nations manage with an unarmed police force - mine for one. And it would be far easier for the government to implement - they'd just have to cut the budget! If guns are bad and dangerous, and violence is not the answer, then here's a really easy way to get rid of a whole lot of them. No more men in black suits stood around the politicians. No more SWAT teams. No more police shootings, like that one in Ferguson. No more getting caught in the cross-fire at police shoot-outs. A few fewer deaths. Sounds like a great idea, eh? ;-)

September 21, 2014 | Unregistered CommenterNiV

==> "So this leaves the young and inexperienced (and potentially socially clumsy) young male in a difficult situation. "

Wow.

So it takes experience and social skill to say "I won't proceed further unless you make it clear that you want to do so also?"

So much for "personal responsibility," eh?

September 21, 2014 | Unregistered CommenterJoshua

==> "There does appear to be this strange idea on the left that the only way people can cooperate and act in concert is if they are centrally organised to do so. "

Lol! You're on a roll tonight, NiV.

September 21, 2014 | Unregistered CommenterJoshua

Dan -

OT for a change - I assume you've seen this?:

http://www.newyorker.com/science/maria-konnikova/i-dont-want-to-be-right

September 21, 2014 | Unregistered CommenterJoshua

"I won't proceed further unless you make it clear that you want to do so also?"

"Well, I'm not going to. What sort of girl do you think I am? So you had might as well go away now."

September 22, 2014 | Unregistered CommenterNiV

"Well, I'm not going to. What sort of girl do you think I am? So you had might as well go away now."

"Well that really sucks, 'cause it would have been great. But my parents are old school conservatives, and they've taught me about personal responsibility. I am responsible for the decisions I make. I can't blame you or anyone else (including college administrators) for my decisions"

September 22, 2014 | Unregistered CommenterJoshua

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