Key Insight
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 ... Read more
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.