Thursday, September 03, 2009

Research On Perception Of Consent

The abstract of Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases by Dan M. Kahan, Yale University Law School:

This paper 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 = 1,500) 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 no or a small impact on the likelihood subjects would support or oppose conviction. The paper links date-rape reform to a class of controversies in law that reflect symbolic status competition between opposing cultural groups, and addresses the normative implications of this conclusion. (emphasis mine)
The study results are informative. It shows that people will ignore legal definitions in favor of their personal bias. It shows that those who hold a hierarchical worldview are more likely to find it legally acceptable for a man to completely ignore a woman's verbal objections and continue against her will.

However, there is data which Kahan misses. That missing data is: "Which actions, if any, in this case are positive evidence of the alleged victim's consent?"

Kahan may have not sought this information because he assumed it wouldn't be included in the case information given to study participants.

I believe the meaningful evidence which was seen as consent outweighing the victims "no" by some study participants was included in the information given to study participants. This wasn't a matter of how people filled in the blanks.
In both law journals and law school classrooms, that debate ["no means ...?"] is frequently brought into sharp focus--and sharp contention--by examination of a controversial case, Commonwealth v. Berkowitz. In an experimental study, a large and diverse national sample of U.S. adults reviewed the key facts in Berkowitz, including the uncontested one that the victim in the case repeatedly said "no" immediately before and during intercourse with the defendant. 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.
From what I've heard from those with a clear hierarchical worldview about how they evaluate consent in non-stranger rapes it is the alleged rape victim's presence, choice of clothing and/or relationship with the defendant which are seen as evidence of her active legal consent.

This is a non-individual form of consent which is imposed from above and which cannot be easily overruled by the individual who is not consenting or who cuts off consent at some point. For those with a hierarchical worldview this non-individual consent can't or shouldn't be legally nullified by one "no" or even by many of them.

I believe that under a hierarchical worldview sexual consent or lack of consent is measured by how a girl's or woman's actions compare to the hierarchical gender norms which the participant believes in.

I've lost count of the times I've heard or read, "She was there," as if it is exonerating evidence. And I can see now why those who made that statement view it as such. Genuine individual consent from a girl or woman is not required and genuine individual lack of consent is meaningless.

The hierarchical gender norm here is that girls/women who are consenting will agree to be alone with a man who isn't part of her family and those who are not consenting will not do so. Under this worldview it wouldn't matter if a girl made it clear that all sexual interactions were off the table before agreeing to be alone with a boy and then said no when a sexual assault began.

The girl is considered to be dishonest by default (she really meant yes and only clearly communicated lack of consent to protect her reputation) and might as well have said nothing more than, "blah blah blah," while the gender norm is considered something a boy should stake his future on.

If the result is he commits rape that shouldn't be his problem since he was resolutely assuming her consent while ignoring any individual words or actions she took which communicated the opposite.

This is why often accompanying this "she was there" claim is "If she didn't want him to have sex with her she shouldn't have __ (been there, flirted, looked sexy, etc.)" The idea that a man who heard "no" and wasn't a rapist would actually stop and assume lack of consent until he verified otherwise seems shocking to some people. This study's correlation to hierarchical worldview helps me understand why.
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 invariable mean "no" but sometimes "yes" or at least "maybe."

The problem with this is that it is NOT a sensible accommodation for girls and women who want their genuine "no" to have any power. This argument is only a sensible accommodation for those who want the legal right to disregard "no." It supports the belief that boys and men should be allowed to blithely ignore "no" in certain situations even though doing so will absolutely guarantee that some boys and men will rape some girls and women. But of course because of how rape is defined by these people these rapes won't count as real rapes and the harm they do can be ignored or considered to be self-inflicted.

The equating of a woman thinking maybe to a woman legally consenting reveals the fundamental flaw in this rationalization. Meaning maybe is not equal to consenting. Meaning maybe is equal to not consenting.

This disregard for a woman's "no" likely doesn't happen when people are evaluating a robbery/sexual assault case where the defendant is claiming consent because the DA found him through DNA. There may be no overt force involved when a stranger assaults a woman in her own bed as she sleeps, but the gender hierarchical norms reject this man's behavior unless he or his attorney can make the jury wonder if there was a prior relationship. As long as he is assumed to be a stranger, he has no hierarchy over his victim so her lack of consent won't be ignored.

Inherent in any hierarchical worldview is that idea that what the person at the top of the hierarchy wants trumps what those lower on that hierarchy want or don't want. The general does not ask for the private's consent before taking actions which impact that private's life or death. The private's consent came upon enlistment. No additional consent is required. Protests from the private have no authority.

This is most obviously exhibited in marital rape exceptions and the opposition by many people to the removal of this exception from rape laws. To these people spousal rape is an impossibility.

In my introductory blog post I wrote:
At the age of 15, my life took an abrupt turn when I was raped by my boyfriend (he would say he simply made a executive decision). Being raped was bad enough, but being told it happened because he loved me (he was powerless to resist me, hah!) really messed with my head.
His rationalizations fit easily within a hierarchical worldview. I freely agreed to be his girlfriend and I freely agreed to be alone with him therefore my well-communicated and consistent lack of consent was as meaningless to him as the private's lack of consent is to a general.

My trauma was nothing more than collateral damage. Like a private with PTSD I was supposed to buck up and soldier on.

That he didn't think forcing himself on me counted as forcible rape should not excuse him legally. If people believe it does then they must insist that this standard be applied to all types of crimes. If there is only a debate over "no means ...?" when the crime is sexual assault then those who reject "no means no" are seeking an exception to all other meanings of legal consent.

If a man grabs the car keys for a car he has borrowed previously from where the owner left them and steals the car over the car owner's verbal protests then he shouldn't be considered a car thief or be legally liable after he goes out and totals that car.

Under the hierarchical worldview approach to the law, for that other man to possibly be held legally liable the car owner would have needed to tackle the other man and if that failed he needed to throw himself on the hood of his car as it was being driven away. The jury would need to see the car owner's bruises and torn clothing even if the defense agreed that the car owner said no.

If the car owner didn't jump in front of his car because he was afraid of being hit and killed, that shouldn't matter.


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posted by Marcella Chester @ 8:01 AM   1 comments links to this post


At September 03, 2009 11:52 AM, Blogger JENNIFER DREW said...

And guess which group benefits from the 'hierarchal group view?' Why men of course since it was men who wrote the legal system and it was men who decided how the legal system would protect men. Women were not considered 'worthy' of protection via the law because when the law was being written women were not human (we are still not human) but were defined as men's property.

Hence we have the 'hierarchal group view' which is male-centered and male-defined. The 'hierarchal group view' also neatly reinforces men's pseudo sex right to any woman or girl. Only in certain circumstances are men proscribed from having 'sex right to women' and stranger rape is one such instance. However, if the stranger rapist can prove the female rape survivor was at the very least known to him even if it was just recognising his face then this can be used to discredit the female survivor's creditability.

Only in cases involving challenging men's pseudo sex right to women do we have the 'hierarchal group view' and given our society continues to be male-dominant and male-centered it is not surprising so many women have internalised the male perspective. Namely women do have any sexual autonomy instead their bodies and sexualities are for the rights and pleasure of men.

This is why in all other crimes we do not have victims subjected to minute examination as to whether or not they physically resisted, dressed inappropriately or 'led the defendant to believe he had the right to steal the victim's property/commit fraud/or even physically assault the victim, because the victim supposedly consented to being physically attacked.

Next time we read or hear a court case involving a defendant charged with robbery or physical assault we should seek evidence that the alleged victim(s) categorically did not consent to his property being taken or being subjected to assault. If we find there was no verbal 'no' then we should assume the victim consented.


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