Thursday, September 10, 2009

Kobe Bryant or Anita Bryant? Who Is Big Ben’s Ideal Juror

Dan Kahan

It’s not clear that the case will ever make it to trial, but if it does, what sort of person would make the best juror for Pittsburgh Steelers quarterback “Big Ben” Roethlisberger in his defense to the civil sexual assault case filed against him? The answer might come as a surprise -- maybe not to Roethlisberger’s lawyers, but probably to many commentators involved in the debate over law and date rape. A study founded on the theory of cultural cognition suggests that Big Ben would likely be judged much more sympathetically by a jury dominated by women who subscribe to highly traditional gender norms than he would by one consisting literally of his “peers.”

Cultural cognition refers to the tendency of people to conform their view of facts to their identity-defining group commitments. We all belong to groups that share basic understandings about how the world does and should work. Forming beliefs that undercut those understandings creates emotional dissonance and also threatens our connections with others whose good opinion we covet. Accordingly, when in legal settings we are required to make judgments about nebulous facts like “intent,” “causation,” “imminent danger,” and the like, we have a psychological tendency to see things that confirm rather than defy our group’s shared understandings. In a Harvard Law Review article based on the Supreme Court’s decision in Scott v. Harris, for example, David Hoffman, Donald Braman, and I presented study results finding that cultural values strongly predicted varying perceptions of the risks posed by a high-speed police car chase captured on a police cruiser videotape.

Recently, I conducted a study to determine whether cultural cognition might explain perceptions of consent in a date rape case. The case was patterned on a highly controversial one, Commonwealth v. Berkowitz, in which the Pennsylvania Supreme Court overturned the conviction of a 20-year old man found guilty of raping a fellow college student who, it was conceded, repeatedly said “no” immediately before and during intercourse but who did not engage in physical resistance. The subjects consisted of a nationally diverse sample of 1,500 U.S. adults. They first filled out a questionnaire designed to measure their cultural values. They then read a detailed description of the trial evidence in Berkowitz, after which they indicated their view of the facts and the verdict they would vote for if on the jury.

The results of the study (which will be published in an article in the Pennsylvania Law Review) were consistent with cultural cognition hypothesis. Whether the accuser in Berkowitz effectively conveyed consent or the lack of it, I found, depended on whom was being asked. Individuals who adhered 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, were highly likely to believe that the accuser’s “no” did not really mean “no” in Berkowitz. In contrast, persons who subscribed to a more egalitarian cultural style that denies the legitimacy of hierarchic forms of social organization, including those founded on gender, were highly likely to perceive that the accuser did not consent, and that the defendant knew that.

The influence of culture, the study found, was much larger than the legal definition of rape. In response to cases like Berkowitz, rape law reformers have proposed eliminating the traditional common law element of “force” and also the defense of “reasonable mistake” on consent. But subjects who were instructed to apply a standard reflecting one or another of these “reform” standards were as likely (around 45%) to find the Berkowitz defendant innocent as subjects instructed to apply the traditional common law definition. Subjects 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 -- a more radical reform not currently in force anywhere -- were slightly more likely to convict. But the size of this increase was small compared to the impact that cultural predispositions exerted under any legal standard.

Gender also mattered much less than culture -- or rather 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. Persons who subscribe to traditional gender norms conceive of “token resistance” -- saying “no” but meaning “yes” -- as a strategy some women use to evade the stigma these norms visit on women who engage in casual sex. Women who have earned high group standing by conspicuously conforming to these norms are the ones whose relative status is most threatened by this strategy. As a result, in a case like Berkowitz they are the persons with the greatest psychological motivation to construe the facts in a manner that results in a condemnatory judgment of women who can be depicted as saying “no” while meaning “yes.”

What’s the upshot of the influence of cultural cognition on the perception of consent? Well, for Big Ben, it means that Anita Bryant would likely be a better juror than Kobe Bryant. In fact, many criminal defense lawyers will tell you that older, more “traditional” women are their best jurors.

For legal commentators, cultural cognition suggests the date rape debate is about something a bit different from what they have been assuming. One such position criticizes the traditional, common law definition of rape as reflecting a distinctively “male point of view.” It turns out, though, that whether “no” necessarily means “no” is not an issue that pits men against women; rather it’s one that pits men and women who subscribe to one cultural style against those who subscribe to another. Indeed, the persons with the greatest stake in preserving the law’s receptivity to possibility that the accuser was feigning lack of consent when she said “no” are certain women, whose cultural values make them resent other women whose behavior they regard as deviant and subversive.

At the same time, this finding also weakens the claim of scholars who defend the common law. They argue that social conventions for expressing consent to sex are ambiguous, and that getting rid of the “force” requirement and the “reasonable mistake” defense would risk punishing innocently confused men. The study, however, suggests that young, sexually active men and women, particularly ones who share cultural styles, are unlikely to misunderstand each other; such persons form comparable impressions when they consider the facts in Berkowitz. Again, the individuals most likely to perceive that “no” means “yes” in such a case are older hierarchical women, who are motivated to perceive “token resistance” by a form of status anxiety. These women might well be surprised were the law to take the position that a defendant in that sort of case is guilty of rape. But the occasion for their distress wouldn’t be any miscommunication about their or their partners’ sexual intentions, much less one that puts them at risk of criminal punishment.

What would disconcert these individuals about rape law reform would not be its effect on behavior but rather its social meaning. Because decisionmakers are so highly disposed to fit their view of the facts to their cultural worldviews, it’s not a surprise that the adoption of rape reform laws seems to have had little impact on the incidence of acquaintance rape. But precisely because the significance of “no” in a case like Berkowitz is such a conspicuous point of cultural contention, any position the law takes will inevitably be understood to be affirming one groups’ norms and denigrating those of another.

Nothing in the study I’ve described tells us how to react to this dimension of the date rape debate. How the law should respond to expressive status conflict of this sort is a normative issue. But by revealing the contribution that competing values make to perceptions of facts in date rape cases -- and the social meaning the law expresses when it takes a position on those facts -- cultural cognition helps us to see that this is one of the issues legal commentators and others should be addressing.

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