Dan Kahan, “Culture, Cognition, and Consent: Who Perceives What, and Why, in ‘Acquaintance Rape’ Cases” – A Request for Input

Prof. Dan Kahan has written a paper that reports the results of an experimental study of perceptions of consent and other facts in a hypothetical date rape case (patterned closely on Commonwealth v. Berkowitz [court stated that the legislature intended the term forcible compulsion to mean”something more than a lack of consent”]) and the impact of various legal standards on how mock jurors of diverse backgrounds would decide such a case. The paper is in draft form, and he is very interested in comments, suggestions and criticisms from a law and feminism perspective. The abstract is as follows:

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.

The draft paper can be downloaded here. His contact information is here, if you have suggestions about the draft.

For anyone interested, a ruling in a case that followed Commonwealth v. Berkowitz can be read here; the facts are recounted in fairly graphic detail.

–Ann Bartow