Study Design 1,500 adults drawn from nationally representative on-line panel Commonwealth v. Berkowitz: Alleged rape of female college student by male student acquaintance. Complainant says no repeatedly, but does not physically resist. Multiple subject to opposing interpretations based on competing scripts or templates. Worldviews Demographic characteristics Fact Perceptions Verdict Alternative formulations of legal definition of rape: common law, strict liability, reform, no means no Sample Vignette Measures Experimental Manipulation

Dave should be found guilty of rape. Response frequencies, all conditions (N = 1,500) Agree: 57% Disagree: 43%

from Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases, 158 Univ. Pa. L. Rev. 729 (2010).Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases,

1.Theory: Identity-protective cognition (cf. Alicke) 2.Existing research: token resistance script (see Mulholland et al.) 3.Prediction: Perception that no means yes is identity- protective for hierarchs, particularly women, so they will favor conviction, regardless of legal formulation. Hypotheses: Who sees what & why?

Pct. Agreeing Dave should be found guilty of rape. Responses for subjects defined by gender, age, & cultural worldview

Pct. Point Change in Likelihood of Agreeing Common Law vs. No Def. Strict Liab. vs. Common Law Reform vs. Common Law Female vs. Male Hierarch vs. Egalitarian South vs. Northeast Repub. vs. Democrat Conservative vs. Liberal Egal. Female vs. Egal. Male 60 y.o. Egal. Fem. vs. 21 y.o. Egal. Male 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Hierarch Female vs. Hierarch Male Hierarch Male vs. Egal. Male Hierarch Female vs. Egal. Female White v. Black Dave should be found guilty of rape.

Female vs. Male Hierarch vs. Egalitarian Egal. Female vs. Egal. Male 60 y.o. Egal. Fem. vs. 21 y.o. Egal. Male 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Hierarch Female vs. Hierarch Male Hierarch Male vs. Egal. Male Hierarch Female vs. Egal. Female Despite what she said or might have felt after, Lucy really did consent to sexual intercourse with Dave. Pct. Point Change in Likelihood of Agreeing

Dave should be found guilty of rape. Common Law vs. No Def. Strict Liab. vs. Common Law Reform vs. Common Law Female vs. Male Hierarch vs. Egalitarian South vs. Northeast Repub. vs. Democrat Conservative vs. Liberal Egal. Female vs. Egal. Male 60 y.o. Egal. Fem. vs. 21 y.o. Egal. Male 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Hierarch Female vs. Hierarch Male Hierarch Male vs. Egal. Male Hierarch Female vs. Egal. Female White v. Black

Pct. Point Change in Likelihood of Agreeing Common Law vs. No Def. Strict Liab. vs. Common Law Reform vs. Common Law Hierarch vs. Egalitarian 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Hierarch Female vs. Hierarch Male 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Dave should be found guilty of rape. Hierarch Male vs. Egal. Male Hierarch Female vs. Egal. Female

Pct. Point Change in Likelihood of Agreeing Common Law vs. No Def. Strict Liab. vs. Common Law Reform vs. Common Law Hierarch vs. Egalitarian 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Hierarch Female vs. Hierarch Male 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Dave should be found guilty of rape. Hierarch Male vs. Egal. Male Hierarch Female vs. Egal. Female

Pct. Point Change in Likelihood of Agreeing Common Law vs. No Def. Strict Liab. vs. Common Law Reform vs. Common Law Female vs. Male Hierarch vs. Egalitarian It would be unfair to convict Dave of a crime as serious as rape.

Pct. Point Change in Likelihood of Agreeing Common Law vs. No Def. Strict Liab. vs. Common Law Reform vs. Common Law Hierarch vs. Egalitarian 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Hierarch Female vs. Hierarch Male 60 y.o. Hier. Fem. vs. 21 y.o. Hier. Male Dave should be found guilty of rape. Hierarch Male vs. Egal. Male Hierarch Female vs. Egal. Female

from Maggie Wittlin, Results of Deliberation, CCP Working Paper No. 67 (June 15, 2011)Maggie Wittlin, Results of Deliberation, CCP Working Paper No. 67 (June 15, 2011)

from Maggie Wittlin, Results of Deliberation, CCP Working Paper No. 67 (June 15, 2011)

But maybe Berkeley would be closer to this if the simulation reflected the venire members cultural outlooks & not just their demographic characteristics.

from Maggie Wittlin, Results of Deliberation, CCP Working Paper No. 67 (June 15, 2011)

What to make of all this? 1.Theory debate: feminism vs. conventionalism 2.Efficacy of law reform 3.Social norms & law 4.Alternatives to criminal law