This 2010 paper of Kahan (Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729 (2010)) is looking into how the legal problem of consent in rape cases intersects with the cultural cognition problem of being a juror in such a situation. The background of this problem is the issue that scripts like token-resistance and "no means yes" complicate the adjudication of fault in rape situations.
Under Kahan's framework, scripts originate with the identity-confirming culture of the juror.
Individuals’ group commitments determine not merely what significance they believe the law should attach to particular facts but also what they perceive to be legally significant facts. [755]
The key supports that the group provides fuel these cases of defending the group:
Cultural cognition is a form of identity self-defense. It is unsettling to be confronted with the claim that behavior revered in one’s community is detrimental to society, or that behavior detested within one’s community is benign or even socially beneficial. [755]
After all
The costs of accepting such a claim can include emotional dissonance and alienation || from others whose support is essential to one’s material and psychic well-being. [755f]
Questioning such stances diminishes not only the individual's support within the group, but also the status of the group within society as a whole [756]. Therefore, evidence is brought in line with the cultural belief and contrarian evidence rejected or disputed.
Kahan then sketches the two world-views that typically collide in US socio-political discourse:
One [cultural style, RCK], which is conservative, traditional, and hierarchical in its orientation, prescribes highly differentiated and stratified gender roles. Men demonstrate their virtue through competition in civil society at large. They are entitled to exercise authority over women, whose status depends on successfully dis- || charging domestic responsibilities. Within this way of life, male promiscuity is tolerated—if not admired—but women are expected to be both chaste and faithful; a woman who engages in sex outside of marriage (or outside of a committed relationship likely to lead to marriage) is viewed with suspicion and contempt. [756ff]
Kahan characterizes the alternative as follows:
The alternative [cultural, RCK] style is more egalitarian in nature. It judges the character of men and women by a largely unitary measure and treats female sexuality as a legitimate expression of individual autonomy. [757]
Kahan reminds us that for women in the conservative, traditional and hierarchical cultural style, the token resistance mode is a way to deal with the delta between cultural expectations (tied to cultural valuation) and potential sexual interests [757].
By conforming to this script [of token resistance, RCK], a woman obtains the benefit of sex with a particular man while communicating that she does not have an appetite for casual or promiscuous sex generally. [757]
This turn from no-to-yes is independently flattering to the virility of the hierarchical male [758], underscoring his exceptional status.
Kahan points out that there is research to show this instrumental nature of token-resistance: women self-report on applying it when interacting with hierarchical rather than egalitarian males [758].
... research on token resistance finds that women who report having engaged in it are themselves likely to be ambivalent toward the hierarchical style. [759]
Those that are firmly hierarchical abide by its chastity requirements and do not need the strategy [759]. Only those concerned about their standing in the hierarchical cultural style require the ruse [759].
For obvious reasons, those women that firmly abide by the chastity requirements of the hierarchical cultural style are most likely to believe that women employ token resistance as well as that other forms of behaviors are "leading men on" [759] to the point of putting the blame on the women who get raped [759].
... women who are strongly committed to hierarchy not only strongly believe that some women engage in token resistance [759] but are also very keen to detect and condemn it. [760]
This is because those using token resistance effectively cheat, in the hierarchy thinking, gaining the advantage of a good reputation without paying the price of sexual virtue [760]. These "cheats" must be called out.
“Mere words” (“no,” “stop”) are just that—mere words, a form of cheap talk that a bad woman can easily use to disguise her lack of virtue. Men know that bad women strategically feign lack of consent for precisely this reason. [760]
The male partner, "no hero, to be sure, but one whose indulgence of his natural male appetite for casual sex is excusable" in this social matrix [760] become vicious only because he engages with a truly virtuous woman.
It is with this cultural matrix that witness approach the testimony "in a date-rape case like Berkowitz" [761].
... as a result of varying emotional and social commitments, individuals of diverse cultural persuasions will acquire uneven identity stakes in the law’s recognition (or rejection) of the norms that construct the cultural logic of token resistance. [761]
Justice in effect means that their community norms are affirmed by the law [761] -- making them prior to the law (as pointed out before [755]). But this affinity cuts both ways:
Individuals whose status depends on opposing norms, in contrast, will be motivated to see the facts in exactly the opposite way, in part to protect the relative standing of their cultural community in society at large, and in part to protect their own personal standing within that group. [761]
This leads Kahan to posit four hypotheses that structure his experiments:
- "... the law will not matter very much in a case like Berkowitz." [761]
- "... culture will matter a lot." [762]
- "... hierarchs and egalitarians will disagree." [762]
- "... other individual characteristics will influence variance in a manner consistent with their relationship to cultural identities." [763]
Because of the dominance of culture over law, if the law changes, perceptions will change to keep in line with the culture [761]. Culture is the one that supplies the motivations and intentions that the jurors attribute to the parties [762]. In this particular case, hierarchs will see norm-evasion and align with the defendant, and egalitarians with the victim's right to female sexual autonomy. Both sides will therefore disagree [762].
Since the grid that Kahan inherited from Mary Douglas and Aaron Wildavsky has 4 positions, there is another dimension, the one of individual vs communitarian. However, Kahan argues, this dimension has unclear explanatory power in this case [763].
Individualistic norms tend to confer status on both men and women for mastery of market and professional roles. But because communitarian norms reward men and women alike for resistance to acquisitive or self-seeking behavior, the individualist/communitarian dimension of cultural worldview does not oppose gender roles per se as strongly as the hierarchical / egalitarian dimension does. [762]
Kahan warns us that gender may not explain much, since culture divides the genders as well [763].
This hypothesis fits awkwardly with both the standard feminist critique of the common law definition of rape and the conventionalist defense of it. [763]
It is the hierarchical women who have the most to lose if token resistance suffices to keep rape at bay.
Indeed, the cultural-cognition thesis furnishes reason to expect that hierarchical women might be even stronger in their pro-defendant perceptions and judgments than hierarchical men. ... They are the ones, then, who have the greatest cultural identity stake in aligning the expressive force of law toward condemnation of such behavior. [763]
Notice that Footnote 138, spanning [763f], is a treasure-trove of cases where the a-cultural mock-jury trial investigations find themselves baffled at women siding with the perpetrator when consent is unclear.
Kahan finally [769-770] gives a summary of the dimensional grid that he has been employing all along when describing the measures of world views that the study works with.
... cultural values were measured with “agree/disagree” attitudinal items forming two scales: Hierarchy/Egalitarianism (Hierarchy) and Individual- [769] ism/Communitarianism (Individualism). The former measures how favorably or unfavorably disposed individuals are toward a social order that features differentiation and stratification of social roles based on observable and largely fixed characteristics (including race, gender, sexual orientation, and class). The latter measures how favorably or unfavorably disposed individuals are toward a social order that treats individuals as responsible for securing the conditions of their own flourishing without collective assistance and that resists collective interference with individual strivings. Scale reliability was high (Hierarchy, alpha = 0.89; Individualism, alpha = 0.91). [770]
(where alpha is Cronbach's alpha to measure the internal validity of attitudinal scales; cf. Fn 154).
Kahan sees a clear methodological advantage to using these two scales.
Hierarchy measures a disposition more general than those measured by gender-role scales and is conceptually more remote from the study’s dependent variables, which themselves relate to perceptions of sexual behavior. [770]
Kahan then presents graphs to give an idea of the data collected [776].
However, the readiness to find Dave guilty put older hierarch females at the bottom of the chart [777].
Kahan et al used multivariate regression analysis statistical simulation to gauge the impact of characteristics on the decision to want Dave found guilty of rape [779-780].
Kahan then reviews the four hypotheses described above [761-763].
Hypothesis #1, that the specific of the laws would have no effect, is true for four of the five categories; only the "no-means-no" text [781], which was not actually law in the USA at that time in any state, had a 10% pts increase on the likelihood of conviction (± 6.9%) [781].
Hypothesis #2, that the cultural effect would dominate, was born out [781], with a 22.8% pts impact (± 7.6%) along the Hierarchy/Egalitarian axis. This also validated Hypothesis #3, that being hierarchical predicated finding Dave not-guilty, and being egalitarian predicted finding Dave guilty [781].
Hypothesis #4, that all other characteristics would be negligible, was born out, including the effects of ideology or party affiliation [782]. Only southern versus northern did, but that one, as mentioned before [cf 763], is due to geographical sorting of hierarchy versus egalitarian into the US South vs the US North East [782]. The influence of age and education had an effect only in aggregate: young college educated voted guilty, old high-school educated not guilty by 9.7% pts (± 7.7%).
Gender for hierarchy increased the probability of not-guilty (men vs women) by 6.8% pts [782] (± 6.4%), while for egalitarian it had a small effect, 1.4% pts, (± 6.0%) [783]. Combined with age, the gender becomes very important: a 60-year old hierarch female is 11.5% (± 8.6%) more likely to vote not-guilty than a 21-year old hierarch male, and a whopping 30.2% (± 10.8%) more likely to vote not-guilty than a 21-year old egalitarian male. As Kahan quips:
A defendant in a date-rape case, then, might well be better off with an older, traditional woman on his jury than with one of his own peers. [783]
Fact perceptions -- NOMEANSNO, CONSENT, HONEST, REASONABLE, NOTLEAVE, NORESIST -- tracked these results [784], resulting in the following graph [785].
Again, hierarchy versus egalitarian is the strongest difference (per hypothesis #2 and #3).
Kahan et al then used ordered logistic regression analysis and statistical simulation of responses to CONSENT to distinguish the influences [785], producing the graph and legend below [786].
These results parallel the judgement outcomes:
All else equal, a subject was 27.7 percentage points (± 7.8%) more likely to agree that Lucy in fact consented, notwithstanding her verbal resistance, when that subject was moderately hierarchical rather than moderately egalitarian in outlook. [787]
Study Hypothesis #4 that effects were meaningful only when conditioned on the cultural views repeated itself here [787].
... the impact of being moderately hierarchical rather than moderately egalitarian was substantially larger (34.2%, ± 8.6%) among women. [788]
So the main surprise of the study was the violation of Hypothesis #1 in the case of "no-means-no", which apparently convinced some hierarchicals?
The impact of the “no means no” definition in arousing anti- defendant fact perceptions was not anticipated. [788]
This effect of the "no-means-no" position is also observable for the question of fairness [792].
All else equal, being assigned to the “no means no” condition predicted a decrease of 11.3 percentage points (± 6.6%) in the likelihood that a subject would agree that convicting Dave of “a crime as serious as rape” would be “unfair.” [791]
Kahan himself points to the independence of this assessment in the hierarchy model.
Moreover, tests failed to disclose any interaction between UNFAIR, the “no means no” condition variable, and Hierarchy. In other words, being assigned to “no means no” generated as great a disposition to see conviction as fair among subjects disposed to a hierarchical worldview as it did among subjects disposed toward an egalitarian one. [793]
[My personal reaction would be that "no means no" sounds exactly like something a hierarchy female would say to her children. But of course, I have no data for that .... RCK]
Kahan turns now to the problem that his findings do not match any of the positions in the date rape debate.
Contrary to the standard feminist critique, disagreements over the significance of “no” cannot be attributed to a conflict between opposing male and female “points of view.” Because cultural differences cut across gender, there is not a meaningful difference among men and women per se on what the facts are or on what the outcome should be in a case like Berkowitz. [794]
Kahan however thinks that this experiment provides the feminist critiques with psychologically plausible explanations of why some women participate in their own oppression.
Far from undermining the feminist critique, this insight should be understood to fortify it by furnishing a psychologically realistic account of why members of a group whose well-being is disserved by a legal institution or practice might nevertheless form beliefs, attitudes, and preferences that perpetuate it. [795]
Kahan then considers that thought the "no-means-no" intervention looks promising, there remains a significant group that was unaffected.
Nevertheless, more than one-third of the subjects instructed to apply the “no-means-no” definition—about 75% as many as were instructed to apply the common law definition— continued to believe the defendant should not be found guilty. [796]
Though the sway was limited, and lawyers might still bet on jury selection, the "no-means-no" beat out other legal formulations without generating the feared backlash [796].
On the contrary, subjects who received the “no means no” instruction were more likely than those who received the common law, strict-liability, or reform definitions (or no definition at all) to concur in the fairness of such an outcome. [796] This result, moreover, was uniform across subjects of all worldviews, hierarchical as well as egalitarian. [797]
Kahan is cheered that the incoming generations are not confused about the facts of each other's signals of consent or non-consent [798].
The study’s results, how- ever, suggest that young, sexually active men and women, particularly ones who share cultural styles, are unlikely to misunderstand each other in that situation; such persons form comparable impressions when they consider the facts in Berkowitz. [798]
Kahan considers that the reactions to date rape cases like Berkowitz most represent other contested subjects like abortion.
That controversy, Kristin Luker has shown, does not pit men against women so much as it pits women of one cultural style against women of another. Those on the “pro-life” side consist disproportionately of women committed to hierarchical norms that confer esteem on women who successfully master domestic roles such as wife and mother. [801]
Because abortion rights bear these social meanings, moreover, “pro-choice” activists consist disproportionately of women committed to an egalitarian style. [801]
These are, of course, the same groups of women in conflict over rape-law reform. [801]
How then to reach consensus, if not by expressive overdetermination?
Whereas “public reason”—the paramount liberal discourse norm—prescribes denuding the law of social meaning as a strategy for inoculating it from culturally partisan values, the way to protect the law from the pathologies associated with endorsement of culturally partisan perceptions of fact might be to multiply such meanings. [804]
Because, as Kahan warns,
It is impossible to formulate a satisfactory response to the debate over rape-law reform without engaging more generally the distinctive issues posed by illiberal status conflict over legally consequential facts. [806]
