Date-rape debate deja vu: the script is 20 yrs out of date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

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