Weekend update: New paper on why "affirmative consent" (in addition to being old news) does not mean "only 'yes' means yes"
As I explained in a recent post, the media/blogosphere shit storm over the "affirmative consent" standard Calif just mandated for campus behavioral codes displays massive unfamiliarity with existing law & with tons of evidence on how law & norms interact.
First, the "affirmative consent" standard isn't a radical "redefinition" of the offense of rape. It's been around for three decades.
Second, contrary to what the stock characters who are today reprising the roles from the 1990s "sexual correctness" debate are saying, an "affirmative consent" standard certainly doesn't require a verbal "yes" to sexual intercourse. It simply requires communication of consent by acts or words.
Third, for exactly that reason it hasn't changed outcomes in cases in which decision makers--jurors, judges, university disciplinary board members, etc. -- assess date rape cases.
Because members (male & female) of certain cultural subcommunities subscribe to norms in which a woman can "consent" to sex despite saying "no," decisionmakers who interpret facts against the background of those norms will sill treat various forms of behavior -- including suggestive dress, consensual sexual behavior short of intercourse, etc.-- as "communicating" that a woman who says "no" really meant yes.
When those individuals apply the "affirmative consent" standard, they reach the same result that they would have reached under the traditional common-law definition -- or indeed that they would have reached if they were furnished no definition of rape at all.
Today I happened to come across an intersting new paper that presents a review of the literature on these dynamics & that adds a relevant analysis on how cultural norms influence testimony of the parties.
In Honest False Testimony in Allegations of Sexual Offenses, J. Villalobos, Deborah Davis, & Richard Leo explain why the same norms that influence decisionmakers' perceptions of "consent" in date rape cases--including ones in which a woman says no--are likely to shape the perceptions of the parties, whose conflicting "honest" testimony will create doubt on the part of decisionmakers. This dynamic, they conclude, helps explain why "cultural predispositions often outweigh legal definitions of sexual consent when individuals make assessments of whether consent has been granted."
People genuinely interested in this issue might want to read it.
Those playing the stock characters in the media remake of the 1990s (and earlier) reform debate probably won't-- if they had any interest in what the law actually is and how social norms have constrained enforcement of reform formulations of rape, they'd have already been familiar with much of this literature & would have recognized that their positions are actually divorced from reality.
Again, changing behavior on campuses requires changing norms. Moreover, rather than being an effective instrument for norm change, legal reforms--including affirmative consent standards-- have in the past been rendered impotent b/c of the impact that norms have in shaping decisionmakers' understanding of what those standards mean.
This is a hard issue.
Maybe a reform like Estrich's "no means no" standard-- an irrebuttable presumption that uttering "no" constitutes lack of consent-- would actually change results by blocking decisionmakers' reliance on contrary social norms. There's some experimental evidence that this is so.
Or maybe (as some argue) it would produce a backlash that would further entrench existing norms.
Accordingly, maybe the emphasis should be on trying to promote forms of behavior that, through one or another mechanism of social influence, will change norms on campuses.
That sort of thinking is likely the motivation for the Obama Administration's new "It's on Us" social marketing campaign.
But one thing is clear: nothing will change if people ignore evidence -- on what the law is, on social norms, and on what real-world experience shows about how the two interact -- and instead opt to engage this issue through platitudinous claims the only function of which is to signify whose "team" people are on in a culture conflict only tangentially connected to the problem at hand.
ooops-- loyal listener @Gaytia alerted me that the linke to the Villalobos, Davis & Leo paper was wrong (embarrassingly, was linke to one of my papers-- argh!).
Download their cool paper Honest False Testimony in Allegations of Sexual Offenses now, before it sells out!!!