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« Are military investigators culturally predisposed to see "consent" in acquaintance rape cases? | Main | Weekend update: Who sees what & why in acquaintance rape cases? »
Thursday
Sep252014

Date-rape debate deja vu: the script is 20 yrs out of date

There's definitely a new strategy being deployed to combat sexual assault on college campuses.

Along side it, however, is a debate that is neither new nor interesting.  

On the contrary, it features a collection of stock characters who appear to have spent the last twenty years at a Rip van Winkle slumber party.

The alarm bell that woke them up was the Obama Administration's two-prong initiative to reduce campus sexual assaults.

The first part aims to pressure universities to more aggressively enforce their own disciplinary rules against sexual assault.

The second seeks to activate campus social norms. The goal of the White House’s “It’s on Us” campaign is to promote a shared sense of responsibility, particularly among male students, to intervene personally when they observe conditions that seem ripe for coerceive sexual behavior.

The initiative reflects a sophisticated appreciation of what over a quarter century of evidence has shown about the limits of formal penalties in reducing the incidence of nonconsensual sex.

From the 1980s onward, numerous states enacted reforms eliminating elements of the traditional common law definition of rape that advocates (quite plausibly) thought were excusing men who disregard explicit, unambiguous verbal nonconsent (“No!”) to sex.

These reforms, empirical researchers have concluded, have had no observable impact on the incidence of rape (Clay-Warner & Burt 2005; Schulhofer 1998).

One likely reason is the tendencey of people to conform their understanding of legal definitions of familiar crimes—robbery, burglary, etc.-- to “prototypes” or socialized understandings of what those offenses consist in.  Change the legal definition, and people will still find the elements to be satisfied depending on the fit between the facts at hand and their lay prototype (Smith 1991).

A CCP study found exactly this effect for reform definitions of rape (Kahan 2010). 

In a mock jury experiment based on an actual rape prosecution, the likelihood subjects would vote to convict a male college student who had intercourse with a female student who he admitted was continually saying “no” was 58% among the large, nationally representative sample.

That probability did not vary significantly (in statistical or practical terms) regardless of whether the subjects were instructed to apply the traditional common law definition of rape (“sexual intercourse by force or threat of force without”); a “strict liability” alternative that eliminated the“reasonable mistake of fact defense”; or a reform standard, in use in multiple states, that both eliminates the "force or threat" element and the mistake of fact defense and in addition uses an "affirmative consent” standard (“words or overt actions indicating a freely given agreement to have sexual intercourse”).

Indeed, the likelihood that subjects instructed to apply one these standards would convict didn’t differ meaningfully from the likelihood that subjects furnished no definition of rape at all would.

Interestingly, if one looks at case law, the same effect seems to apply to judges.  When legislators reform one or another aspect of the common-law definition, courts typically reinterpret the remaining elements in a manner that constrains any expansion of the law's reach (Kahan 2010).

One could reasonably draw the conclusion that changing the rules won't work unless one first changes norms (Baker 1998).  I think that's what the Obama Administration believes.

The stock characters, in contrast, believe a lot of weird things wholly unconnected to the evidence on laws, norms, and sexual assault.

In a goofy NY Times Op-ed entitled “ ‘Yes’ Is Better Than ‘No,’ ” e.g., Gloria Steinem and Michael Kimmel incongruously call for replacing the “the prevailing standard” of “ 'no means no’ ” with the “affirmative consent” standard that California has recently mandated its state universities use.

To start, "No means no" is not the "prevailing standard." It isn't the law anywhere.

In addition, an "affirmative consent" standard, which is already being used in various jurisdictions, does not require an "explicit 'yes' " in order to support a finding of "consent.

What sorts of words and behavior count as communicating “affirmative, conscious, and voluntary agreement to engage in sexual activity" are for the jury or administrative factfinder to decide.  

If such a decisionmaker believes that women sometimes say "no" when they "really" do intend to consent to sex, then that judge, juror, or college disciplinary board member necessarily accepts the view that verbally protesting women can communicate "yes" by other means, such as dressing provocatively, voluntarily accompanying the alleged assailant to a secluded space, engaging in consensual behavior short of intercourse etc.

Because it doesn't genuinely constrain decisionmakers to treat "no" as "no" to any greater extent than it constrains men to do so, "affirmative consent," evidence shows, hasn't changed the outcomes in such cases.

In fact, the standard California is mandating for university disciplinary proceedings— “affirmative, conscious, and voluntary agreement to engage in sexual activity”—is not meaningfully different from the one that already exists in California penal law (“positive cooperation in act or attitude” conveyed “freely and voluntarily”). If there's a problem with the current standard, this one won't fix it.

The "affirmative consent" standard's failure to block reliance on the social understanding that "no sometimes means yes" is exactly the problem, according to some people who actually know what the law is and how it works. Their proposal, presented  by Susan Estrich in her landmark book Real Rape (1988), is that the law simply treat the uttering of the words "no" as  irrebuttable proof of lack of consent.  That would prevent decisionmakers from relying on social conventions implying that women can "voluntarily," "consciously," "freely," affirmatively" etc. communicate consent even when they say no.

The CCP study furnishes some support for thinking this sort of standard might well change something. In the mock juror experiment, the only standard that increased the probability that study participants would find the defendant guilty was Estrich's "no means no" standard.

It would be really useful to have some real-world evidence, too.  But again, far from being the "prevailing standard," "no means no" is not genuinely how any state defines lack of consent for sexual assault.

Are Kimmel & Steinam really arguing with those who propose such a standard? No; they simply aren't talking to anyone who actually knows what the law is or how it has worked for the last quarter century.

Same for those playing the other stock characters.

One of these is the deeply concerned law professor. Picking up the lines of a twenty-year old script, he assures us that he knows how very very serious rape is. Nevertheless, he is quite worried that the “vagueness” of requiring the affirmative consent standard will subject men who are behaving perfectly consistently with social convention to risk of punishment. Requiring proof of something clear like "force or threat of force" is essential to avoid such a perverse outcome.

Again, the reforms opposed by the angst-ridden professor have been in place in many jurisdictions for decades. They don’t change how juries and courts decide cases relative to the (equally vague!) traditional definition of the offense of rape or any other definition that is actually in use.  Because decisionmakers construe reform provisions consistent with the social prototype of rape that prevails in their communities, the deeply concerned law professor needn't worry that an affirmative consent standard will “unfairly surprise” a man who mistakenly infers that a woman who says "no" (over & over) actually means "yes!"

Then there is the “reactionary conservative” (a role still played by George Will).  He worries now (just as he did in 1993) that requiring affirmative consent is part of a plot to increas[e] supervision by the regulatory state that progressivism celebrates.” 

Hey-- grumpy old reactionary dude: just calm down. I'm pretty sure that if the "affirmative consent" standard were really a communist trojan horse, the Bolsheviks would have climbed out of it by now!

There’s also the character who has assumed the familiar role of “postmodern” super-liberated “vamp” feminist.  She remains concerned that the “unrealistic” and “vague” affirmative consent standard is going to actually restrict her autonomy by deterring liability-wary men from having sex with her.

She should calm down too—unless, of course, her goal is to get people to pay attention to her for reprising this trite role. Her right to have as much sex as she likes will not be affected in the slightest!

Indeed, those now playing the role of vamp, grumpy conservative, deeply disturbed law professor, and egalitarian rape-law reformer also seem to be unaware of the evidence on who does feel most threatened by rape law reform and why.

Despite the rhetoric one sometimes hears, the issue of whether “no” really should mean no for purposes of the law does not pit men against women.

The dispute is one between men and women who share one set of cultural outlooks and men and women who share another.

Looking at individual-level predictors, the CCP study found that members of the public who were relatively hierarchical in their cultural outlooks were substantially more likely than others to acquit of rape a man who admittedly disregarded the complainant’s repeated statement “no” than individuals who were culturally egalitarian. 

The disparity between these groups was unaffected by the legal standard the subjects were instructed to apply.

It was magnified, however, by gender: women with hierarchical values were the most likely to see the complainant as having consented despite her verbal protests.

The study hypothesized such a result based on other empirical work on the "token resistance" script. Based on survey and attitudinal data, this work suggested that individuals who subscribe to hierarchical norms attribute feigned resistance to a woman’s Wanna *see* what the raw data featured in the regression model look like? You always should!strategic intention to evade the negative reputational effects associated with defying injunctions against premarital or casual sex.

Although both male and female hierarchs resent this behavior, the latter are in fact the most aggrieved by it.  They understand the individual woman who resorts to “token resistance” as attempting to appropriate some portion of the status due  women who genuinely conform to hierarchical norms (Muehlenhard & Hollabaugh 1988; Muehlenhard & McCoy 1991; Wiederman 2005).

In the spirit of convergently validating these findings, the CCP mock juror experiment posited that women with hierarchical values—particularly older ones who already had acquired significant status—would be most predisposed to form perceptions of fact consistent with a legal judgment evincing social condemnation of women who resort to this form of strategic behavior.

That this proved to be so is perfectly consistent with the conventional wisdom among criminal defense attorneys, too.

Roy Black famously secured an acquittal for William Kennedy Smith through his adroit selection of a female juror who met this profile and who ended up playing a key role in steering the jury to a not guilty verdict in her role as jury foreperson.

Experienced defense lawyers know that when the college football payer is on trial for date rape, the ideal juror isn’t Kobe Bryant; it’s Anita Bryant.

Women with these hierarchical outlooks have played a major role in political opposition to rape-law reform too.

These are Todd Akin’s constituents, “women who think that they have in some ways become less liberated in recent decades, not more; who think that easy abortion, easy birth control and a tawdry popular culture have degraded their stature, not elevated it.” Because of the egalitarian meanings rape reform conveys, they see it as part and parcel of an assault on the cultural norms that underwrite their status.

To tell you the truth, I’m not sure if the stock characters in the carnival debate triggered by the Obama Administration’s initiative are unaware of all this or in fact are simply happy to be a part of it.

I don’t see the Administration Initiative itself, however, as part of the cultural-politics date rape debate. It's the product of thinking that takes account of the experience of the last quarter century. 

Again, precisely because experience has shown that changing the wording of rules is not an effective means for reducing the incidence of acquaintance rape, many serious commentators have concluded that changing attitudes is (Baker 1999).

The Obama Administration's “It’s on Us”  campaign bears the clear signature of this way of thinking. By exhorting male students, in particular, to accept responsibility to intervene when they sense conditions conducive to coercive sexual behavior, the campaign is intended to fill students’ social field of vision with vivid new prototypes to counteer the ones that constrain the use of rules to regulation nonconsensual sex.

The voluntary assumption of the burden to protect others from harm can be expected to inspire a reciprocal willingness on the part of others to do the same.

Examples of such intervention, against the background of common understanding of why it's now taking place, will evince a shared understanding that a form of conduct that many likely regarded as "consistent with social convention" is in fact one that others now see as a source of harm.

And observing concerted action of this kind will recalibrate the calculations of those who might previously have believed that behavior manifestly out of keeping with common expectations would evade censure.

In a community with reformed norms of this sort, new rules might well accompany changes in behavior, not because they supply new instructions for decisionmakers but because they reflect internalized understandings of what forms of conduct manifest violate the operative legal standard, whatever it happens to be.

Will this social-norm strategy work?

The Obama Administration Initiative will generate some useful evidence-- at least for those who actually pay attention to what happens when people try innovative measures to solve a difficult problem.

 

References

Baker, K. K. (1999). Sex, Rape, and Shame. B.U. L. Rev., 79, 663.

Clay-Warner, J., & Burt, C. H. (2005). Rape Reporting After Reforms: Have Times Really Changed? Violence Against Women, 11(2), 150-176. doi: 10.1177/1077801204271566

Estrich, S. (1987). Real rape. Cambridge, Mass.: Harvard University Press.

Kahan, D. M. (2010). Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases. University of Pennsylvania Law Review, 158, 729-812. 

Muehlenhard, C. L., & Hollabaugh, L. C. (1988). Do Women Sometimes Say No When They Mean Yes? The Prevalence and Correlates of Women's Token Resistance to Sex. Journal of Personality & Social Psychology, 54(5), 872-879.

Muehlenhard, C. L., & McCoy, M. L. (1991). Double Standard/Double Bind. Psychology of Women Quarterly, 15(3), 447-461.

Schulhofer, S. J. (1998). Unwanted Sex : the Culture of Intimidation and the Failure of Law.

Smith, V. L. (1991). Prototypes in the Courtroom: Lay Representations of Legal Concepts. J. Personality & Social Psych., 61, 857-872. 

Wiederman, M. W. (2005). The Gendered Nature of Sexual Scripts. The Family Journal, 13(4), 496-502. doi: 10.1177/1066480705278729

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Reader Comments (32)

http://dailycaller.com/2014/09/19/obama-anti-rape-effort-recruits-for-left-wing-org/

Here are a couple paragraphs copied from the above link.

"A website for the endeavor, promoted by President Obama in the video, asks visitors to take a pledge to intervene against possible assaults, to “not to be a bystander to the problem but to be a part of the solution.” Pledge takers are asked to change their profile pictures on social media outlets to the campaign’s logo and to supply their emails and zip codes to the campaign.

Those who participate will have their information forwarded to the Center for American Progress, a left-wing think tank with significant ties to the Obama administration. This is because the “It’s On Us” campaign, despite its presidential endorsement, is actually being undertaken by Generation Progress, a student activism arm of CAP."

Sounds like it isn't Obama's initiative and he is mostly just endorsing harvesting of email addresses for use by a far left group for future spamming. Along with sprinkling around a few million dollars of taxpayer money to some favored universities.

Why am I not surprised?

September 25, 2014 | Unregistered CommenterBob Koss

The Clay-Warner & Burt study focuses on how reforms have affected rape reporting, not incidence, no? And they conclude that reporting has increased, although there hasn't been a significant change in difference in reporting rates between "aggravated" rape and "simple" rape. It seems to be a modestly pro-reform conclusion. (Certainly a different outcome measure from incidence or punishment, but still a relevant one.)

I can't remember: does any scholarship address the difference in potential enforcement between college policies and criminal laws, due to (a) who's implementing them (college administrators/boards not being a random sample of the population and instead having both institution- and culture-related biases) or (b) relative punishment severity (a semester's suspension might seem more appropriate for a bit of misbehavior than a felony conviction)?

September 25, 2014 | Unregistered CommenterMW

@Mw:

A. On reporting

there are a couple of distinct issues here.

1st is why look at relative reporting to assess impact of reform..

Reform statutes were meant to redress law's relative inattention to assaults that fit an "acquaitance rape" protype, one typically in which woman's verbal "no" is disregarded by man with she has social connection, relative to assaults that fit the "stranger rape" propotype, in which a woman is violently assaulted by man with whom she is not socially connected & by violenced forced to submit to sex.

One measure of whether reform statutes are working, then, is to observe whether skewed ratio reporting "stranger" vs. "acquaitance" is narrowing. The reform statutes all expand liability and imporove procedure for prosecuting acquaintance, and if those changes are in fact making the law more respnosive, then we should expect women who experience acquaintance rape to notice & start reporting more often.

If the disparity doesn't narrow, then that's evidence that people on the ground aren't being influenced by the reform provisions.

It is the *ratio* that matters in this strategy for measuring effectiveness: if reporting for *both* change in tandem, that's more consistent with effects unrelated to rape-law reform, since the reform statutes wouldn't be expected to increase the law's receptiveness to prosecuting f stranger rape cases.

2d question is-- what does the reporting data say. C-W & B both b/c they do a nice study & becuase they present a very complete survey of other studies.

I read their conclusion as suggesting that the "reporting ratio disprity" test suggests no meaningful effect:

Bachman’s finding that acquaintance rapes were no less likely to be reported in the late 1980s than were stranger rapes suggests that the distinction between aggravated and simple rape may also have little predictive power postreform given that most acquaintance rapes take place without weapons and additional injury (Burt, 1991). Our findings, however, indicate not only that the distinction between aggravated and simple rape remains an important predictor of reporting but also that the impact of this variable did not differ significantly across time. . ..

Reforms may have failed in improving the likelihood of reporting simple rape for a number of reasons. Rational choice perspectives argue that victims report when they perceive that the benefits associated with reporting are greater than the costs. Reform statutes were designed to reduce these costs by improving treatment of rape victims and increasing the benefits by improving the chances that reporting would result in a conviction. Reforms may have failed simply because they have not evoked enough changes in the criminal justice system to make the benefits greater than the costs. Indeed, rape victims continue to report dissatisfaction with the criminal justice system (e.g., Frazier & Haney, 1996; Konradi, 1997, 1999). Evidence presented by Horney and Spohn (1996) indicates, however, that there are few differences in criminal justice processing of simple versus aggravated rapes postreform thus suggesting that the potential benefits associated with reporting different types of rape are now roughly equivalent. Rape victims also often incur great personal costs when reporting simple rape, not the least of which is the risk of being ostracized by friends and family. It maybe that the benefits obtained by reporting do not currently outweigh these personal costs. If so, then rape reform legislation will not be wholly effective until societal attitudes also change.

This issue brings the focus back to the intersection of the instrumental and symbolic goals of reform. If victims of simple rape are less likely to report than victims of aggravated rape because of the ineffectiveness of reforms in altering the criminal justice process, then instrumental goals have not been met. If victims of simple rape are less likely to report than victims of aggravated rape because of the ineffectiveness of reforms in bringing about changes in societal perceptions of rape, then symbolic goals have not been met. In either case, the fact that simple rapes continue to be underreported relative to aggravated rapes is evidence that not all goals of rape reform have been attained.


Of couerse, we would like to directly measure frequency of date rape & there are measures like that, too. But it's hard to do it, & also difficult to disentangle impact of change in law from other influences that might be operating.

So the reporting ratio is an additional strategy to try. So are experiments, qualitaitive data, etc. One shoudl do all these things & look to see if consistent signal emerges.

If one looks at attempts to assess impact in all these ways, they do seem to tell same story: no meaningful effect. Schulhofer (1998) ch. 2 collects sources.

More evidence would be useful, though, certainly. But if one is arguing that perceived ineffectiveness of law can be remedied by standards already in place (like "affirmative consent"), that's not very convincing.


B. On penalty administrator & penalty severity

there's not very good evidence here.

there is the perception -- supported by casual empirics -- that part of the limited effectiveness of reform is that penalties for "rape" are too high for nonconsensual but "nonforcible" ("no means no") date rape. But I'm less persuaded of this than I used to be (in part b/c of some findings in the CC Consent study).

On universities-- basically same: not enough good evidence. Nevertheless, university disciplinary authorities (not sure if there are data on different sorts) do seem to balk at sanctioning for the prototypical, "no means no" fact pattern when penalty is explusion or even suspensiion. Again perceptin is that the administrators can't bite the bullet in imposing that level of condemnation.

September 25, 2014 | Registered CommenterDan Kahan

==> "Sounds like it isn't Obama's initiative and he is mostly just endorsing harvesting of email addresses for use by a far left group for future spamming."

Indeed. In fact, I'm sure that no one person involved cares a whit about reducing the number of women who are raped.

September 25, 2014 | Unregistered CommenterJoshua

Maybe I'm naive or guilty of wishful thinking, but irrespective of how court cases have legally defined rape, i suspect that "no means no" becoming at least something of a social paradigm has likely led to fewer women being penetrated (trying to avoid the ambiguity in how to define rape here) when they didn't want to be.

I suspect that promoting the notion of "affirmative consent" will likewise have beneficial outcomes as well. Will making it "mandatory" have a counterproductive impact on men who are legitimately confused about a woman's true desires? Possible, but those outcomes should be viewed in a larger context that includes potential benefits.

September 26, 2014 | Unregistered CommenterJoshua

@Joshua

Could be.

But (a) there's nothing new -- both have been around for decades -- about "no means no" message & "affirmative consent" as standard & as message for promoting it; and (b) the occasion for the Obama Administration initiative is the perception that there is an unacceptably high level of sexual assault on campuses that reflects "no sometimes means yes" social norm.

You realize, too, how often advocates have "feelings" that one or another thing they are doing is "starting to work" (think of climate advocates, e.g.); they ought to recognize this as consistent w/ living in a bubble & be wary of trusting the feeling -- but they don't

September 26, 2014 | Registered CommenterDan Kahan

Dan -

Sure - the "bubble effect" is certainly pernicious. Lately, I've been thinking that the tendency to generalize from an unrepresentative sample is perhaps the most operative mechanism of motivated reasoning.

September 26, 2014 | Unregistered CommenterJoshua

@Joshua:

You could be right. Indeed, it would be easy to *guarantee* you are right, but in a way that would make the claim less intersting.

The way to make what you are right necessarily true is to envision all of motivated reasoning as a form of biased sampling. People make estimations, say, on the basis of the weight of the evidence they have accummulated. However, engage in motivated information search that selectively exposes them to evidence supportive of the position consistewnt w/ motivation (say protection of group identity). In addition, they display biased assimulation, selectively crediting or discrediting information from whatever source based on their conformity with that same motivating stake. Finally, they display motivated cognitive access: they remember or summon to mind evidence in patterns more supportive of identity. As a result, the evidence they rely on when they make their estimations are biased -- biased by the biased sampling methods, which included a form of data collection that presupposed the hypothesis and then a form of data assessment that did.

Fine. Everything is unprepresentative sample. But then the claim is more or less a metaphor.

The more interesting version of claim sees "unreprsesentative sample" as connected to a particular mechanism that one belives is more consequential than or for motivated reasoning than others that don't involve "unrepresenative sample" in the same way.

E.g., we might surmise that people are disproportionately exposed to views that are congenial to their identity both b/c they hang out more with others like them. Accordingly, when they have to make an estimation, there is just much more evidence available to them that conforms to identity-protective outcome than identity-threatening one.

Then we could say that that sort of unbalanced information exposure "drives" the effect we associated wit motivated reasoning. It's more consequential, say, than biased assimulation or perhaps biased accessing of relevant evidence.

Indeed, we could treat this sort of socially "unrepresenative sampling" as alternative* to motivated reasoning, since it could happen independently of biased search, biased assimilatin, biased accessing etc.. Basically, people are data collection devices that place themselves in biased locatoins.

This could be true. But I think it isn't quite right...

September 26, 2014 | Registered CommenterDan Kahan

Dan -

By chance, I just followed a link to this:

==> "This article describes three heuristics that are employed to assess probabilities and to predict values. Biases to which these heuristics lead are enumerates, and the applied and theoretical implications of these observations are discussed.

Many of the probabilistic questions with which people are concerned belong to one of the following types: What is the probability that object A belongs to class B? What is the probability that even A originates from process B? What is the probability that process B will generate event A? In answering these questions, people typically rely on the representativeness heuristic, in which probabilities are evaluated by the degree to which A is representative of B, that is, by the degree to which A resembles B"


Anyway - I had some trouble following you, but let me try...

You say:

"E.g., we might surmise that people are disproportionately exposed to views that are congenial to their identity both b/c they hang out more with others like them. Accordingly, when they have to make an estimation, there is just much more evidence available to them that conforms to identity-protective outcome than identity-threatening one."

If I'm following you, then I agree. And as such, their sample would be representative of their totality of evidence - but they're still using an unrepresentative sample vis-à-vis the larger context....

Looking at the link that you gave, the problem isn't necessarily so much that we've selected who we want to hear (although that is the case often, certainly) but that we are willing (at least sometimes) to assume that our sample is representative w/o checking In other words, we are selective in when we check for representativeness.

Certainly, when "motivated" to do so, we will check to make sure our sample is representative. For example, when presented with a positive observation of a "skeptic" " I will investigate to see whether the example is representative of the larger group. When presented with a positive observation of a "realist," I am going to be less "motivated" to check for representativeness.

So then:

"Then we could say that that sort of unbalanced information exposure "drives" the effect we associated wit motivated reasoning. It's more consequential, say, than biased assimulation or perhaps biased accessing of relevant evidence."

So there's a fork in the road that goes from information exposure to conclusion. If I like what the sample tells me then I go straight to the positive conclusion, without recognizing that my sample might be biased. If I don't like what the sample tells me than I check for respresntativeness before being willing to even consider accepting a conclusion. In the end, the mechanism of how my motivation plays out into bias is still a willingness to generalize from an unrepresentative sample - even if my methodology for collecting my sample is not what we might call affirmatively biased.

September 27, 2014 | Unregistered CommenterJoshua

@Joshua:

There doesn't have to be motivation to make mistake of treating as representative the skewed sample one is exposed to by virtue of everyday interactions. Happens in lots of contexts b/c it just doesn't occur to people that their exposure is biased w/ respect to the frequency of whatever it is they are trying to estimate.

I don't think that "drives" polarization on risk etc. But it's a hypothesis that can be tested in relation to ones that featured motivated reasoning.

If the claim is that one unconsciously participates in biasing sample, though, then it's hard to get the "biased sampling is most important form ot motivated reasoning" b/c *all* forms of motivated reasoning are "biased sampling" in that sense

September 29, 2014 | Registered CommenterDan Kahan

I really think this conversation is troubling in its miopia. First, while discussions of "No means no" may have been around for decades, effective implementation has not.

Date rape prosecution would have been nearly impossible back in the era when I was in college, and even now, with public support possible, are very difficult. Social norms were so different that many women were left with the guilt that this was there fault. Or if well embedded in the culture, perhaps thought it was normal that married life should start with an unintended pregnancy and a father with a shotgun.

And I think that the statistics shown above are significantly underestimating the degree to which women publicly rationalize what may have happened to them, (or how they avoided it). One of the problems with (mostly male) college administrators, police, politicians and others is that many of them were frat boys or in other situations in the military where sexual exploitation may have been something they participated in. Thus, making them the deciders puts them in a position where they may have to re-evaluate their own past actions. We can't understand this without understanding and addressing the imbalance of power.

Yes, this is a wrenching social change. Those in power, like Frenchman Dominique-Strass are going to have to give up the illusion that what they practice is a romantic seduction with a willing counterpart. Figuring out a line between a teenage boy's line of "If you really loved me then...." and female reluctance to comply is going to be a difficult thing for people of that age to verbally negotiate.

But we are having conversations like this in public ways in which we never held them before.

And certainly, I would think that laws such as this one just passed in California are driving those sorts of conversations:
http://www.politicususa.com/2014/09/29/california-leads-rape-culture-means-law.html

The bill reads in part:

An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

September 29, 2014 | Unregistered CommenterGaythia Weis

@Gaythia:

I don't get your comment.

That's the Calif provision discussed in the post. If there is a probelm w/ date rape today -- which I believe there is -- then this standard won't solve it; it's already the law in Calif & many other states & in many college misconduct codes--and indeed evidence suggests it doesn't make it any more likely a man who refuses to take "no" as "no" will be convicted. The authors of the op-ed apparently didn't get that.

"No means no" is the law nowhere. That's a standard that possibly could make a difference.

Are you saying you are against the proposal to have that be the definition of consent?? If not, then how are you disagreeing with the post? Or are you only referring to the @NiV-@Joshua colloquy?

September 29, 2014 | Registered CommenterDan Kahan

I just don't think you are taking into account how legal changes mesh with cultural ones, and give victims the opportunity to speak out. Without the backing to safely speak out, things can't change.

Does it make a difference if we change the laws so that homosexuals have rights in the workplace and can marry? Of course it does. The ability to come forward and be recognized for who you are changes everything.

Changes in sexual discrimination and assault practices have been remarkably slow.

When I was in college there was essentially no such thing as date rape, as without evidence of serious physical abuse, a "reasonable" location for a woman to be in at that time of day, and no ambiguity as to whether or not the woman might have "asked for it', such cases would have never seen the light of day if brought to the prosecutors office. And most sensible woman would never have put themselves through the unproductive trauma of doing so. Some woman wouldn't have even realized that they were raped, that it was not their fault.

A local politician, Brock Adams, was widely believed to be a sexual predator, but never prosecuted. In my experience, nothing was ever done beyond warning women never to be alone with the guy. http://community.seattletimes.nwsource.com/archive/?date=19920301&slug=1478550. With increasing negative press, he retired, and that was the end of that.

Women for generations have lived in an environment where their voices were not recognized.

It was back in 2003 that I was on the jury for a rape trial involving a unconscious woman. This was a precedent setting case. Prior to that time a woman in this situation would have been sent home and told that the prosecutor would not take such a case due to lack of evidence. So there were zero conviction in similar instance prior to that point. Has this changed everything? Well no. But it pushes things forward. But it leaves other judges and other juries more up to their own devices to decide whether to transfer this decision to other jurisdictions.

The new California law makes it more explicit and more publicized that the all the way to yes standard is the law of at least that state. Which is something that will, in my opinion, both change the nature of the cases that are brought forward and the convictions obtained. I'm betting it will change many conversations between parents and teenage sons and daughters. And might stop a Dominique-Strass, and inspire at least investigations of cases such as the Brock Adams one. Or ones involving others with clout and power such as athletes, as this ruling based on Title 9 did for CU; http://www.denverpost.com/ci_7640880

Because, after all, if it were really true that:
"The voluntary assumption of the burden to protect others from harm can be expected to inspire a reciprocal willingness on the part of others to do the same."
Then we wouldn't need police, courts, judges or lawyers.

The law is a significant component of "the common understanding"

September 29, 2014 | Unregistered CommenterGaythia Weis

@Gaythia:

I'm trying to examine the relationship between norms & law by looking at empirical evidence.

I don't think it's possible to form a reliable understanding any other way.

September 29, 2014 | Registered CommenterDan Kahan

"I just don't think you are taking into account how legal changes mesh with cultural ones, and give victims the opportunity to speak out. Without the backing to safely speak out, things can't change."

That's an interesting point. Do victims on *both* sides of the issue have the backing to safely speak out?

"Does it make a difference if we change the laws so that homosexuals have rights in the workplace and can marry? Of course it does. The ability to come forward and be recognized for who you are changes everything."

Would it make a difference if we change the laws so that homophobes have rights in the workplace and can choose who they do business with? Or at least, allow them to say what they think? Do they have the ability to come forward and be recognised for who they are, without penalty?

Many of these issues involve a conflict of interests between several parties. Unfortunately, a lot of the rhetoric is based on recognising the position of only one of them, and pretending that it constitutes the whole issue. The lack of balance generally results in the political winds swinging from one extreme to the other, an instability that serves nobody well in the long run. But in the short term it is so tempting to try to exclude the opposing positions as out of bounds for public discussion that few activists for a cause can resist it, if they can achieve it. In the short-term, it is a powerful technique.

Without all sides having the opportunity to speak out, the law of unintended consequences takes effect. Legislators seek to create social change in a particular direction, but because they are not aware of all the forces in play, people react and adapt in ways they don't anticipate, that either cancel out the intended effect, or worse, create an even worse situation. Even if people are not allowed to express certain opinions, they still hold them, and will often act on them.

So the question is: how will the other parties involved react in response to the shift in incentives resulting from the California law? How will the sexual predators react and adapt? How will other non-predatory men adapt? What will those changes mean for women?

It's like the way legislators outlaw prostitution to save women from it, expecting people to stop doing it. The result of which is only to drive it underground, where violent criminals profit from it, and where the women can no longer seek the protection of the law, or use many of the legitimate business world's ways of protecting themselves. Women suffer more as a result.

That wasn't what the legislators intended, but good intentions aren't enough. These new laws will, I think, be the same. Interfering in this particular emotionally-charged arena, they are ripe for unintended consequences galore.

September 29, 2014 | Unregistered CommenterNiV

An interesting, related article.

http://www.slate.com/articles/double_x/doublex/2014/09/false_rape_accusations_why_must_be_pretend_they_never_happen.html

I still think that it's important to view the larger context. Given that we live in an imperfect world - long-term, what are the likely costs and benefits of "mandating" affirmative consent? I'm going with a likelihood of greater benefit than cost (as I would judge is the case with "no means no.," despite NiV's alarmism.

September 29, 2014 | Unregistered CommenterJoshua

I agree that the Obama Administration’s two pronged approach as described above is important. Reaching a new societal consensus is a worthy goal. And the idea of encouraging men (and other women) in general to take more shared responsibility for what is going on around them could change the social dynamic of events such as fraternity parties.

I disagree that
“ the standard California is mandating for university disciplinary proceedings— “affirmative, conscious, and voluntary agreement to engage in sexual activity”—is not meaningfully different from the one that already exists in California penal law: “positive cooperation in act or attitude” conveyed “freely and voluntarily.””

And I also disagree that:
"It's also absurd to think that an affirmative consent standard is more protective of women who don't consent to sex than a genuine "no means no" standard. "

In my opinion, this new standard is likely over time to result in a fundamentally different way that sexual encounters are conducted, a real sea change from the “seduction” imagined by Dominique-Strass. This sort of explicit verbal conversation, especially if conducted well in advanced of the actual sexual encounter, might actually lead to a much more well considered sexual event, complete with birth control. Not making the “consent” part of fumbling around in the back of a car or in bed, with mumbles and ums all wrapped in the heat of passion and/or fear of what was happening, would make for much more well considered sexual encounters. This might go a long way towards alleviating the concerns of men, from the comments of NiV above to the angst ridden professor mentioned by Dan. It could be that these negotiations would be very equalizing for the roles of both parties.

I also wouldn’t underestimate the importance of that first prong. The legislation in California is strong backing for the pressure on universities to more aggressively enforce their own disciplinary rules against sexual assault.

I haven’t had any particular reason to keep up with the literature on this topic. I read a bit just now about Michael Wiederman and Sexual Script theory. I believe that the sexual scripts of my youth were, for men, that women say no when they mean yes, and for women, they implied that men might, if overstimulated go out of control and it was a woman’s duty to stop the man before it went “too far”. This was, of course potentially a particularly disastrous combination. And the no means yes script is a big reason that yes means yes is a very significant improvement. Also how are scripts devised? And why wouldn’t knowledge of a new law influence that, by being public authoritative backing for new societal standards?

I couldn’t access this paper: Clay-Warner & Burt 2005. I tried to look up California rape statistics online. While California seems well on its way to solving violent crime, with big reductions reported, that is not relevant to this discussion. https://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd12/cd12.pdf
It is true that rape law reforms have been taking place since the 1980s (and before). But total societal change takes much longer. Certainly the mere idea of acquaintance rape was controversial well into the 1990s. (Katie Roiphe comes to mind).

Earlier studies, from around the 1980’s by Mary Koss, showed the incredibly high one in four statistics for rape victims. I think that the attitudes of the hierarchical women described in the post above has to be taken in the context of a society in which these women may, if they admitted to the new standards, be force to acknowledge that they may have been victimized in the past. That fits with your work showing "hierarchical women have a distinctive interest in stigmatizing rape complainants whose behavior deviates from hierarchical gender norms." I found this fairly recent (2008) work by Koss, with the following statement:
“This paper reviews data documenting the high levels of attrition that transpire between reporting sexual assault to law enforcement and case disposition by prosecutors. The data demonstrate that conventional justice has over a period of years been very good at doing little to respond to sexual assault reports.” Koss was (as of 2008) apparently working on restorative justice programs. http://vawnet.org/summary.php?doc_id=1231&find_type=web_desc_AR

I can’t see how statistical studies could separate out variations in which women are coming forward to report rapes. The Clay-Warner paper you cite does show real changes in the numbers of rapes now being reported. But it dosn't seem (based on reading the absract to disucss changes in dispositions of cases. Just getting an accessible rape kit is a challenge in some jurisdictions, which also vary widely as to the level of emotional support offered rape victims.

Jury reform is an issue that seems to me to be beyond the scope of this post. Certainly prominent men with able attorneys such as the William Kennedy Smith case cited above fare better than the accused with less access to top legal representation. But it also raises questions about the nature of the mock juries you describe above. Actual juries are selected by the attorneys acting to the best of their ability to get a decision in their favor. Thus a population representative "mock jury" would not be representative of an actual trial.

September 29, 2014 | Unregistered CommenterGaythia Weis

NiV

==> "they are ripe for unintended consequences galore."

Unintended consequences are a fact of life. I think that what's more useful than taking a binary approach towards unintended consequences (which exist with basically everything), I think that a careful, empirical approach should be employed.

Along those lines:

==> " Women suffer more as a result."

Of course, there may be more beyond a cost/benefit analysis that plays in to opinions w.r.t anti-prostitution laws, and from what I've seen, the evidence may lean in the direction of more benefits than costs - but my sense is that the evidence not sufficient to support your confident conclusion. My guess is that much depends on the societal context of the laws, not the existence or lack thereof in and of itself. But I am open to empirical research. What did you use to form your confident conclusion that irrespective of circumstance, women suffer more as a result of anti-prostitution laws?

September 29, 2014 | Unregistered CommenterJoshua

Dan -

==> "It's also absurd to think that an affirmative consent standard is more protective of women who don't consent to sex than a genuine "no means no" standard"

Wouldn't you think that there'd be an overall net benefit from parents telling their children that they should use an affirmative consent standard as a guide for decision-making about sex?

If so, do you think that there is zero likelihood that government or institutional mandate for the use of that standard would lead, over time, to more parent raising their children to apply that standard, of that it wouldn't become more widespread imply by virtue of the adoption of that standard by significant societal institutions?

Certainly, I'd guess the changes would take time to manifest, and certainly I'd guess they wouldn't be absolute. And maybe it wouldn't manifest in any significant change - but I don't get why you think it would be "absurd" to think that institutional adoption of the standard would have net benefit.

September 29, 2014 | Unregistered CommenterJoshua

Dan -

Whew - a ton of typos in that last comment..but I think you'll be able to read past them.

September 29, 2014 | Unregistered CommenterJoshua

@Joshua & @Gaythia: Those same things have been said for over 2 decades. One can always shrug off failed predictions w/ "well, we just haven't waited long enough," but that's the sort of response that suggests that there's no evidence a person would ever accept as showing the prediction was wrong.

Do the two of you *oppose* treating "no" as irrebuttable proof of non-consent? Aside from cases where the woman was passed out drunk or close to it, these cases involve a man persisting after verbal protests-- & those are cases where things like what woman was wearing, whether she was in man's room alone, whether she had consented to some sexual activity short of intercourse, etc., are factors that many decisionmakers (jurors, admninistrators) actually treat as grounds for finding either "consent" or "reasonable mistake" despite "no."

The Calif statute is just theater. People who write op eds characterizing this sort of standard as meaning that unless a woman utters the words "yes" a decisionmaker must find no consent are simply wrong. That they are recycling decades' old rhetoric confirms they aren't really familiar with this issue

September 30, 2014 | Registered CommenterDan Kahan

A number of more recent studies seem to discuss the conclusions of Muehlenhard cited above, and expanding beyond these conclusion seems highly desirable to me. The "token resistance" script is of course, right in there with the "when women say no they mean yes" meme. And may indeed be 20 years out of date. The conclusion also neglects the importance of the fact that women in hierarchical cultures are dis-empowered by the paternalistic nature of those cultures. Thus, they actually may mean no, they don't really intend to end up barefoot and pregnant, they simply lack the power and negotiating skill to get to the relationship they do desire.

The token resistance script would, IMHO, be a strong argument towards the idea that a script of getting all the way to yes is much stronger and much less ambiguous. This can be done, as Joshua points out above.

http://books.google.com/books?id=4t5cAgAAQBAJ&pg=PT195&lpg=PT195&dq=Muehlenhard+%26+McCoy+1991&source=bl&ots=p2s4NzkugQ&sig=n2h2sG5eIEhwhi1XtEQD1g-4BnQ&hl=en&sa=X&ei=AZgqVLv5Ecjw8QGQ-4HQBQ&ved=0CEAQ6AEwBQ#v=onepage&q=Muehlenhard%20%26%20McCoy%201991&f=false

I can only access one page, but Muehlenhard herself seems to have an interesting re-evaluation of her own work here (but I can only read part of it): http://pwq.sagepub.com/content/35/4/676.extract

Other interesting work based on seeing only the abstracts:

http://tva.sagepub.com/content/15/4/297.abstract

http://jiv.sagepub.com/content/20/6/725.abstract

http://jiv.sagepub.com/content/14/9/989.abstract

Explanations I've read involving victim blaming cite the psychological comfort of believing that if the victim had not done this that or the other thing, the rape would not have happened. This supports the need of women to feel safe, by thinking that such a rape could not have happened to them.. Additionally, given that about a fourth of women may have experienced what would now be defined as rape, significant amounts of denial may be taking place.

http://www.emmainteractive.com/index.php?option=com_content&task=view&id=27312&Itemid=3158
http://www.academia.edu/3218280/Research_Report_Attribution_of_Victim_Blame_in_Rape_

This review seems useful: [DOC]A review of the literature relating to rape victim blaming: An ...
www.researchgate.net/...rape_victim_blaming...victim...blame...rape.../5...
Abstract Historically, many studies have examined rape victim blaming among ..... and heterosexual male victims (Davies et al., 2011; Wakelin & Long, 2003).

I found this to be an interesting discussion of addressing victim blaming and using the Obama administration's "It's On Us" strategy because of who is sponsoring the work with fraternities - their insurance company! http://www.care2.com/causes/rape-prevention-programs-need-to-put-victim-blaming-at-the-forefront.html

September 30, 2014 | Unregistered CommenterGaythia Weis

Dan -

I'm talking about using a larger frame than simply outcomes of court cases to assess impact.

Measuring the #'s of rapes, let alone measuring causality behind trends in those numbers, is obviously extremely complex. But my guess is that the prevalence of hearing "no means no" as a standard has had an impact in shaping social values regarding rape - with a net benefit. If it has not altered the jury's finding in one rape case, it has still potentially had an impact on men when they've heard a woman say "no" and potentially helped to empower women to say "no" where they might not have otherwise.

Social change takes place concurrent with the adoption of specific social values in important societal institutions. Again, causality is hard to delineate. Have attitudes about homosexuality changed because courts have changed in their view about discriminating on the basis of sexual preference or visa versa? I don't think that it's either/or. And despite NiV's apparent concern about homophobes not being able to express or act upon their bigotry, I see the societal change in attitudes about the acceptability of intolerance w/r/t sexual preference as a good thing.

Irrespective of the outcome of court cases, if society shifts, even subtly, towards a standard of affirmative consent, I think that would be a net benefit. If some men don't make assumptions about what a women wants absent affirmative consent, I think that would be a good thing. If some women feel empowered by an expectation that sex won't occur unless they provide affirmative consent, I think that would be a good thing.

I'm not saying those outcomes are certain, merely that I don't think it is "absurd" that promotion of the affirmative consent standard by powerful social institutions might have a net beneficial impact.

Political theater is a reality - but political theater in and of itself does not mean that there can be no beneficial outcomes.

September 30, 2014 | Unregistered CommenterJoshua

I agree with Joshua. The California legislation is not "just" theater, and a little theatrical flair may be a good communication outreach mechanism anyway. A two pronged approach, education with a firm legal standard to ensure that everyone knows this is serious, is a good way to proceed. The all the way to yes approach strikes me as excellent.

It also strikes me as a culturally cognitively valid approach. Rather than the hidden agenda non communication of men assuming that women are only putting up “token resistance” and women expected to speak up before it is too late, at which point the man is supposed to slam on the brakes, we could end up with a much richer discussion of sexual intentions in advance. Which would, IMHO, lead to deeper relationships, and in the longer run, marriages with greater chances of long term success.

While we women are discouraged by the pace of change when it comes to gender equity, sexual harassment, and rape, there is no question but which great progress has been made since the time I was a teen.
Cases are now in the news and in the courts that never would have seen the light of day before. And, many date rape cases, which under historical circumstances would have left women under a mountain of guilt, are at least now proceed to trial. The fact that these trials may not yet appropriately lead to convictions is very frustrating, but still a situation better than that before. And the level of support available to women who have been assaulted is, in many communities, much greater than in the past.

September 30, 2014 | Unregistered CommenterGaythia Weis

@Gaythia:

My point is exactly that: the "no means .... maybe yes" norm is *not* "out of date" & still constrains use of legal standards, including "affirmative consent." "Affirmative consent" doesn't genuinely require someone to say "yes" -- only to "communicate" that by actions or words, etc. Accordingly, it is still the case that a juror (best ones are older tradional value females) treat "no" as feigned.

A "no means no" standard would foreclose finding "afffimrative consent" in actions or words in case in which woman says "no." It is more protective for that reason. The idea that "affirmative consent" standard is a genuine reform is 20 yrs out of date precisely b/c "no means yes" norm *isn't*.

I really feel like you have my position inside out.

You haven't read my paper, correct? In addition to the experimental results, it describes the relevant legal & historical & scholarly bkrd.

September 30, 2014 | Unregistered Commenterdmk38

"This sort of explicit verbal conversation, especially if conducted well in advanced of the actual sexual encounter, might actually lead to a much more well considered sexual event, complete with birth control."

The problem is that a lot of people don't want to hold the conversation. The question is, what will they do instead?

" I think that the attitudes of the hierarchical women described in the post above has to be taken in the context of a society in which these women may, if they admitted to the new standards, be force to acknowledge that they may have been victimized in the past."

If you use the new standards, a similarly large fraction of men have been sexually assaulted by women, too.

"What did you use to form your confident conclusion that irrespective of circumstance, women suffer more as a result of anti-prostitution laws?"

The prostitutes complain about the laws vociferously.

"The conclusion also neglects the importance of the fact that women in hierarchical cultures are dis-empowered by the paternalistic nature of those cultures."

I think that misunderstands the reason the 'hierarchical' women are doing it. The idea is that the women are claiming to be too good for the suitor, that he is unworthy, as a way to make him raise his offer. It is like a salesman who tells you that the used car is really worth a lot more, and you're going to have to really twist his arm and bargain hard to get him to lower the price. Of course, the salesman wants to sell you the car, and is willing to do so for a much lower price than he is asking, but by pretending that the goods are more valuable and he is really unhappy at having to sell it like that, he is likely to get a higher price, and at the same time convince the customer they've got a valuable item worth protecting. A girl does not like to be seen as too "easy", because that's a synonym for "cheap". The 'game' is all about raising the status and 'market value' of women.

It's only 'patriarchal' in the sense that the women make the men do all the work and take all the responsibility and risk.

September 30, 2014 | Unregistered CommenterNiV

@NiV & @Gaythia:

You seem to disagree about who follows the the "token resistance script" & why. Also about what to make of hierarchical women who hold highly condemnatory attitudes toward the women in “no means . . .?” date rape caeses.

Research suggests that only women weakly committed to hierarchy report following it. Women who are highly committed to hierearchal norms or who are committed to egalitarain norms do not (Muehlenhard & Hollabaugh 1991).

Women who follow the script say that they do so only out of concern about reputational impact of expressing ready agreement to sex. This account of why they follow the script is consistent with their report of when they do it: only when they are interacting with a male who is perceived to have hierarchical as opposed to hierarchical values (Muelenhard & McCoy 1988).

If one accepts this research, then it doesn’t fit reality to object that a “no means no” standard would be interrupting some valued game of erotic indirection. (I know you are arguing about an “explicit yes” stanard; but that’s only because, despite the wording of “affirmative consent” standards & evidence of how they applied, you are continuing to indulge the mistaken premise that that’s what an “affirmative consent” standard like Calif’s requires). Women who follow the “script” are constrained to behave in ways they don’t value by norms they wish didn’t exist (Muehlenhard & Hollabaugh 1991).

What about the highly hierarchical women-- the ones who report not following “token resistance” scripty & are the most condemnatory of women perceived to be following it?
@Gaythia speculates they are experience cogtnitive dissonance of some sort.

That's very interesting but I am more persuaded by the conclusion -- supported by lots of researchers using surveys & related interview methods (Muehlenhard & Hollabaugh 1991; Burt 1980; Calhoun & Townsley 1991; Kalof 1993)-- that these women are mainly just very pissed off at perceived erosion of norms against premarital or casual sex, and see women who aren’t abiding by hierarchical norms as the main culprits. Like Ingraham seems to be.


Yes, the sources I cite are over two decades old. But the impressions of people who actually have real experience with date rape cases as well as experimental evidence suggest that the social-norm dynamics being described are still definitely still very much alive. What's out of date are the *arguments* now dominating public debate: they ignore 25 yrs of research & experience on norms, law & their interaction in this area.


My guess is that the Calif statute is just a symbolic gesture, one intended simultaneously to get DOJ off of the backs of California schools (the ones under investigation for not enforcing the exsiting affirmative consent standards!) & to satisfy the demands for “reform” by faux advoctes--the ones who swoop in to play parts in a public performance but who don't actually know what's going on.

People who think the "affirmative consent" standard is a genuine departure from status quo are being naive. Estrich's "No means no" standard (1986, 1988) has always been & remains the most radical proposal.


Burt, M.R. Cultural Myths and Supports for Rpe. Journal of Personality and Social Psychology 38, 217-230 (1980).

Calhoun, K.S. & Tonwsley, R.M. Attributions of Responsibility for Acquaintance Rape. in Acquaintance Rape: the Hidden Crime (ed. A. Parrot & L. Bechhofer) 57-70 (Wiley, New York, 1991).

Estrich, S. Rape. The Yale Law Journal 95, 1087-1184 (1986).

Estrich, S. Real rape (Harvard University Press, Cambridge, Mass., 1987).

Kalof, L. Rape-supportive attitudes and sexual victimization experiences of sorority and nonsorority women. Sex Roles 29, 767-780 (1993).

Muehlenhard, C.L. & Hollabaugh, L.C. Do Women Sometimes Say No When They Mean Yes? The Prevalence and Correlates of Women's Token Resistance to Sex. Journal of Personality & Social Psychology 54, 872-879 (1988).

Muehlenhard, C.L. & Hollabaugh, L.C. Do Women Sometimes Say No When They Mean Yes? The Prevalence and Correlates of Women's Token Resistance to Sex. Journal of Personality & Social Psychology 54, 872-879 (1988).

October 1, 2014 | Registered CommenterDan Kahan

Dan, the comment thread demonstrates, I suppose, the problems in initiating affirmative conversations in that the parties may just talk right past each other.

Yes, the data you cite are over two decades old, and in my opinion are due for some re-evaluation.

The reason I posted the details of the California initiative above is that it is that language, not the NYT editorial discussing policy at “Antioch of Ohio” that is relevant to the discussion here. (Antioch University, in Yellow Springs Ohio, collapsed under its own far lefty liberal weight several years ago, and has been reconstituted since then as Antioch College, which I see as a ghost of it’s former self. The goofy part of this editorial is giving NYT weight and attention to it and its extreme “contracts”.)

The CA legislation specifically addresses policies within the CA University and College system. This legislation is thus an extension of the law of the land “No Means No” standard which still prevails. I believe this extension is very positive, for the reasons that Joshua and I discuss above. And yes, while the language is much vaguer than I'd like to see, if I were an administrator in a university setting I would be advocating that the pair involved had had a real conversation involving a real exchange of intentions before engaging in sex. I"d push the idea that a collective trip to the local Planned Parenthood office for STD testing and birth control advice would be a great place to start. As a disciplinary matter, the foregoing would not help in many cases. Couples would still couple without that sort of planning, and in some cases the pair may have had sex before, but this encounter was unwanted on the part of one. No Means No still stands.

And as you note for jurors in a foot dragging sense, they do not always follow the script set forth for them by past case law. And that can work in a forward direction as well. As the case I was involved in demonstrates. Also, as Joshua indicates, this will change the way that wise parents instruct their children, and very well may, especially in California, influence the way that all date rape cases are considered going in forward.

(The Cultural Cognition Project ought to get its "before" baseline studies in now, with follow-ups planned for years to come!)

As I understand it from reading your article, your mock juries, similar to polling that I worked on for The National Jury Project years ago, can inform actual jury selection by elucidating the likely jury behavior of certain types of potential jurors. Stereotypes can be useful, but also should, in my opinion, be broadened to understandings beyond some of the tired old assumptions as to what drives them, such as the idea of “token resistance”. The paper didn’t bother me back then. What bothers me now is the manner in which you seem to be using its findings to dispute the way society at large is or ought to be handling rapes.

Actual juries, as anecdotally described by you with reference to Michael Kennedy Smith, or me, in my jury experience, are deliberately biased by the opposing attorneys in the selection process, in attempts to achieve their desired outcomes. And so this is a very political process, one dominated on one side by who is prosecutor in the relevant venues. In my Boulder County Colorado case, the prosecutor clearly desired to take on this case in a manner that would set a precedent. (The jury was wary of this). In Whatcom County Washington state, the Republican prosecutor is so entrenched that no local attorney has the guts to run against him. And to highlight this problem, a dog ran in the primaries as a prominent write in candidate. In many venues the prosecutors are part of the existing power structure, and thus may have been slow to take on rape cases that go against that structure. On the other side, lawyers available to defendants very in expertise and willingness to use the sorts of findings your paper demonstrates in jury selection.

I think that analogies can be drawn with civil rights legislation, abortion, homosexual rights and many other areas in which social standards are in a state of flux. Legislation pushes the bar forward. The fact that many still do not agree keeps the matters controversial and delays full legal implementation. The community standards are driven forward significantly by the fact that these laws publicly exemplify new societal standards. A “two prong” approach is still needed. Public communication strategies are very important. But the laws themselves drive the communication aspect of this forward.

Considerable change has occurred in attitude since the 1980’s. Statistics for CA that I gave above show that violent crime including violent rapes, have declined considerably. More support is available generally for rape victims. As I note above not until 2003, in Colorado was a precedent trial even held for the prosecution of a rape for a victim who was unconscious due to alcohol consumption. Communication has changed. The advent of social media means that cases like the one in Steubensville WV connect with a national audience, offering the victim support unavailable within the confines of local power structures. In those contexts, jury attitudes will change too.

NiV, I believe that extensions of the concept of the need for positive affirmation before sexual activity are gender equalizing. And could lead to better recognition that men can be victims.

October 1, 2014 | Unregistered CommenterGaythia Weis

@Gaythia:

The NYT op-ed discussed in my post is not about antioch. As the post made clear, it is about the Calif standard, the language of which I cited & which is identical to language in reform statutes that have been adopted in various states. "No means no" is not, for 10^15 time, the prevailing standard; it is a proposal that is much more radical than "affirmative consent...."

I don't think we are talking past. But I do accept at this point that we are just not part of the same conversation.

October 1, 2014 | Registered CommenterDan Kahan

The "goofy part" of the editorial is the interpretation of such efforts given at Antioch:
". He told an audience at Harvard in 1999 that “at Antioch College in Ohio, young men seeking intimacy with a coed must get verbal permission at each step of the process from kissing to petting to final copulation — all clearly spelled out in a printed college directive.”"

The conversation as given in Obama's two prong approach, and in the CA initiative, is, IMHO, an important conversation and we, along with the rest of society, ought to be engaged in modern aspects of it.

October 1, 2014 | Unregistered CommenterGaythia Weis

When I stop zooming around and get to a place I have access, I plan to read the 20 year perspective article written by Charlene Muelenhard in 2011 in full here: http://pwq.sagepub.com/content/35/4/676.extract.

If I were you, I think I'd just call her up and ask her for her current opinions.

People born in 1991 are now 23, and presumably frequently now copulating under standards that have changed since that time. The older, hierarchical women of that time may, at least in some cases, be tucked away in retirement homes by now. Or maybe tucked in with the guy down the hall. In 23 years, their opinions on sexual activity also may have evolved.

No Means No is a standard that is often only imposed at the latter ends of an evening or other engagement. The requirements for affirmative consent, in my opinion, mean that a couple needs to talk through what they are doing long before it gets to the point that the woman decides is almost too far, and says no, requiring the man to slam on the brakes.

I would be very interested in Muelenhard's potential contribution to this discussion.

October 1, 2014 | Unregistered CommenterGaythia Weis

Ok, I've read Muelenhard's 2011 article. To me, this is bringing up the complexity of saying no, and determining passive acquiescence. Precisely what the affirmative consent measures are trying to address. I think that having this affirmative consent policy in colleges, on top of state rape statues, is a step forward in ensuring an environment in which females are safe from rape. And additionally, one in which males have a framework to operate under which they do not feel that their actions and reactions to their partner could subject them to later legal actions.

Further, I don't think we are focusing on the right legal tests here. What this legislation does is define for the Universities what they must do to protect themselves from financial aid cutoff or litigation. What cases make successful individual rape cases in a court of law is a separate issue. I noted in a comment above an example of where it is the fraternities insurance company that is pressuring them for change. I think that the Title 9 lawsuits have pressured Universities into greater action. I believe this legislation will do the same.

As this NYT article notes;

"But the most talked-about new approach, adopted by many schools in the past year, is to require mutual “affirmative consent,” and not just passive acquiescence, before any sexual contact. California has raised the stakes becoming the first state in the country to pass a law obliging every college to have a consent policy or lose state financial aid."

http://www.nytimes.com/2014/09/30/us/california-law-on-sex-consent-pleases-many-but-leaves-some-doubters.html?_r=0

Note that this leaves plenty of encouragement for the need for follow up studies. That, as I also noted above seems to me to be an opening for the Cultural Cognition Project.

October 2, 2014 | Unregistered CommenterGaythia Weis

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