Culture, cognition, and consent: who perceives what, and why, in acquaintance-rape cases.

• Author: Kahan, Dan M.

This Article uses the theory of cultural cognition to examine the debate over rape-law reform. "Cultural cognition" refers to the tendency of individuals to conform their perceptions of legally consequential facts to their defining group commitments. Results of an original experimental study (N = 1500) confirmed the impact of cultural cognition on perceptions of fact in a controversial acquaintance-rape case. The major finding was that a hierarchical worldview, as opposed to an egalitarian one, inclined individuals to perceive that the defendant reasonably understood the complainant as consenting to sex despite her repeated verbal objections. The effect of hierarchy in inclining subjects to favor acquittal was greatest among women; this finding was consistent with the hypothesis that hierarchical women have a distinctive interest in stigmatizing rape complainants whose behavior deviates from hierarchical gender norms. The study also found that cultural predispositions have a much larger impact on outcome judgments than do legal definitions, variations in which had either a small or no impact on the likelihood that subjects would support or oppose conviction. This Article links conflict over rape-law reform to a class of controversies that reflect symbolic status competition between opposing cultural groups, and it addresses the normative implications of this conclusion.

INTRODUCTION I. THE "NO MEANS ...?" DEBATE A. Berkowitz 1. The Case 2. The Controversy B. Law and Norms: Three Positions II. AN EXPERIMENTAL STUDY A. Theoretical Background and Hypotheses 1. Cultural Cognition 2. The Cultural Logic of "Token Resistance". 3. Hypotheses B. Design and Methods 1. Sample 2. Vignette 3. Experimental Conditions: Alternative Legal Standards 4. Measures a. Cultural Worldviews b. Other Individual Characteristics c. Response Measures 5. Statistical Analyses C. Results 1. Outcome Judgments a. Preliminary Analyses b. Multivariate Analysis 2. Fact Perceptions a. Preliminary Analyses b. Multivariate Analyses 3. Fairness a. Preliminary Analyses b. Multivariate Analysis III. RECONCEPTUALIZING AND REFOCUSING A. Interpreting the Empirical Evidence B. Reconsidering What's at Stake CONCLUSION APPENDIX: STUDY INSTRUMENT INTRODUCTION

Does "no" always mean "no" to sex? More generally, what standards should the law use to evaluate whether a woman has genuinely consented to sexual intercourse or whether she could reasonably have been understood by a man to have done so? Or more basically still, how should the law define "rape"? These questions have been points of contention within and without the legal academy for over three decades. (1) The dispute concerns not just the content of the law but also the nature of social norms and the interaction of law and norms. According to critics, the traditional and still dominant common law definition of rape--which requires proof of "force or threat of force" and which excuses a "reasonably mistaken" belief in consent--is founded on antiquated expectations of male sexual aggression and female submission. (2) Defenders of the common law reply that the traditional definition of rape sensibly accommodates contemporary practices and understandings--not only of men but of many women as well. The statement "no," they argue, does not invariably mean "no" but rather sometimes means "yes" or at least "maybe." Accordingly, making rape a strict-liability offense, or abolishing the need to show that the defendant used "force or threat of force," would result in the conviction of nonculpable defendants, restrict the sexual autonomy of women as well as men, and likely provoke the refusal of prosecutors, judges, and juries to enforce the law. (3)

This Article describes original, experimental research pertinent to the "no means ...?" debate. In both law journals and law school classrooms, that debate is frequently brought into sharp focus--and sharp contention--by examination of a controversial case, Commonwealth v. Berkowitz. (4) In an experimental study, a large and diverse national sample of adults reviewed the key facts in Berkowitz, including the uncontested fact that the victim in the case repeatedly said "no" immediately before and during intercourse with the defendant. (5) The subjects then indicated whether they believed the victim consented to sex or could reasonably have been understood to have done so by the defendant. Subjects also indicated how they believed the case should be decided after being supplied with the common law definition of rape or with one of several reform alternatives. The goal of the study was not merely to generate data on whether people perceive "no" as sometimes meaning "yes" to sex and on how different legal standards affect their willingness to convict a man of rape in a case presenting that question. The study also aimed to connect the "no means ...?" debate to a psychologically realistic account of how and why people form such perceptions and make such judgments.

"Cultural cognition" refers to the influence of group values on individuals' perceptions of facts. (6) The law often requires decisionmakers to infer facts they cannot directly observe: states of mind, causal links, risks, and the like. In such circumstances, individuals naturally gravitate toward factual perceptions that reflect their group commitments. People who share formative identities tend to apprehend facts in a similar way in part because they are likely to be drawing on common life experiences when interpreting the significance of various events. But more importantly, such individuals face strong psychological pressure to fit their perceptions of how the world does work to their shared appraisals of how the world should work: forming beliefs at odds with their core values exposes them to dissonance and risks putting them in conflict with others whose opinions of them affect both their material and emotional well-being. (7) As a result, even when individuals of diverse cultural values are exposed to the same sources of evidence-eyewitness statements, expert opinions, and even videotaped recordings of key events--they can hear and see very different things. (8) The study found that exactly this dynamic is at work when individuals consider the evidence in a case like Berkowitz. The question whether the putative victim in that case effectively conveyed consent or the lack of it depends on the answer to another question--who is being asked.

Individuals who adhere to a largely traditional cultural style, one that prescribes highly differentiated gender roles and features a commitment to hierarchical forms of authority and social organization more generally, are highly likely to believe that "no" did not mean "no" in Berkowitz. In contrast, persons who subscribe to a more egalitarian cultural style that denies the legitimacy of hierarchical forms of social organization, including those founded on gender, are much more likely to perceive that the complainant did not consent and that the defendant knew that. These competing perceptions cohere with opposing sets of norms and related scripts of sexual behavior, conformity to which apportions status within the cultural groups adhering to them.

The influence of culture on individuals' perceptions of fact is much stronger, the study found, than other factors that might be expected to affect the result in a case like Berkowitz. One such factor is the legal definition of rape. Subjects who were instructed to apply a standard reflecting one or another "reform" definition of rape were not more likely to convict than were subjects instructed to apply the traditional common law definition---or than those who were not supplied with any definition of rape at all. Subjects who were instructed that rape includes sex when a woman says "no"--regardless of what she might have meant to convey or what the man understood her to be communicating--were slightly more likely to convict. But the size of this increase was relatively small compared to the impact of cultural predispositions on subjects who received this or any other definition of rape.

Gender also mattered much less than culture---or, more accurately, mattered only in conjunction with it. Overall, women were no more or less likely to favor conviction than were men. However, women who subscribed to the hierarchical cultural style--particularly older women who did--were more inclined to form a pro-defendant view of the facts. This result also reflects cultural cognition. Those who subscribe to traditional gender norms conceive of saying "no" but meaning "yes" as a strategy some women use to evade the stigma that these norms visit on women who engage in casual sex. Women who have earned high group status by conspicuously conforming to these norms are the ones most threatened by the prospect that women who use this strategy will escape censure. The former are thus the ones with the greatest psychological motivation to construe facts in a case like Berkowitz in a manner that focuses the condemnatory force of the law against women who can be depicted as saying "no" while meaning "yes."

The cultural-cognition account of who is likely to see "no" as meaning "yes," and why, does not logically entail a particular resolution to the debate over how the law should define rape. It does, however, cast considerable empirical doubt on the factual premises of certain normative arguments conventionally advanced within that debate.

One such premise is that the traditional common law definition reflects a distinctively "male" point of view. The "no means ...?" debate does not pit men against women, but rather pits men and women who adhere to one cultural style against men and women who adhere to another. Indeed, those with the greatest stake in preserving the law's attentiveness to the possibility that women who say "no" might be merely feigning lack of consent are women whose cultural identities endow them with resentment of...