More interesting to me, though, is why Lisa and I disagree. She's a knowledgeable person and I generally find her work smart and credible (though I also know from personal experience that anyone who writes so often is bound to have a few off-key moments, and she has, too). But Lisa and I don't disagree because one of us is "wrong," we disagree because we have, or at least prioritize in this case, different values that we apply to the facts.
Just as interesting to observe was her article's comment section, which evidenced a strident clash of values and strongly held belief systems. The most widely recommended comment responded to someone who'd announced, "I think it's great that the judge had his concerns. Isn't that what justice is all about?" The response was "You are as despicable as the judge."
Lisa believes that questioning the victim about details of the crime amounts to the judge "re-victimiz[ing] the victim." She thinks the judge should "leave the defense to the defense" and sentence the offender without interrogating the source of any doubts he may have about the alleged crime or the jury verdict.
By contrast, having just left a gig as Policy Director of the Innocence Project of Texas, my first thought about the case was "Good, I've known way too many men wrongly convicted of rape who lost decades of their lives to false convictions. I'm glad the judge is making sure he gets it right."
These sharp differences in point of view about whether Judge Fine's questioning was appropriate reminded me immediately of an interesting academic piece I read recently (identified thanks to CrimProf blog) by Yale University law prof Dan Kahan on the topic of "Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases," which has been accepted for publication next year in the Pennsylvania Law Review.
I became aware of Dan's work a few years back after attending a talk he gave at UT-Austin on the subject of shaming punishments. One of the key elements of his theoretical approach is the concept of "cultural cognition," which is a high-falutin' way of describing the "influence of group values on individuals’ perceptions of facts." "Cultural cognition is a form of identity self-defense. It is threatening to be confronted with the claim that behavior revered in one’s community is detrimental to society and behavior detested within it benign or even beneficial." The theory aims to explain why, "even when [people] are exposed to the same sources of evidence—eye witness statements, expert opinions, even videotaped recordings of key events—individuals of diverse cultural values can hear and see very different things."
In this recent paper Kahan analyzes the demographics, values and ideology of public opinion in reaction to a well-known acquaintance rape case in a northeastern university setting, interviewing 1,500 people on the topic who all read a 16-paragraph summary of the facts from a court opinion. I called Dan because, though the allegations in Houston were of forcible rape (which the defendant claimed was consensual), the reactions to the Judge's questions struck me as similar to the dynamics identified in his paper.
Upon reading the story and comments, he agreed the reaction to the judge was a good example of his theory at play, noting that "people project into it because there are a couple of gaps caused by incomplete information. ... For starters, 'what happened?'" The story really didn't give much detail about either the specifics of the crime or what the judge said, he noted, leaving readers to fill in all the gaps with their imagination and personal perspsectives.
He also found it remarkable that "People have such strong opinions about why other people might disagree with them. We assimilate an incomplete picture and fill in details from prior experience," he said, "but then we're so confident that if people disagree with them they know what was their motive."
Some readers thought the case evidenced the predictable result of electing "liberal Democratic judges." One reader suggested the judge's questions demonstrated that, "The liberal, which most defense attorneys and many Democratic judges are, does not have any love for women or their rights." Someone else, presumably a liberal, by contrast, thought the Judge was biased as a "white male." Yet another replied that "I can't agree with [Lisa] on this one. Juries make mistakes all of the time. OJ was acquitted, remember?" All of these views are projections based on the commenters' personal history and experiences - they tell us more about the speaker than they illuminate the facts.
Kahan compared commenters' reactions to Barack Obama's press-conference statement on the Henry Louis Gates' story, suggesting that the President's initial comments drew on his personal history, perspective and values filling in gaps in a narrative that, in reality, he knew very little about.
Kahan acknowledged that even among Chronicle commenters, "There were some sensible reactions. That was heartening, actually. That judge didn't have much of a chance to give account for himself, of course, and he did give the guy 25 years." He said the judge should be "mindful of the contribution the jury makes," but "You want the judge to give the right punishment ... the system was not set up by accident that it gives a judge independent judgment on this issue."
His paper points out that the public doesn't even agree on the purpose of the law, much less how it should be applied in an individual case. Some may think the law should acknowledge cultural norms and accommodate them, while others see the law as a change agent to impose their values on others who don't share them, what Kahan refers to as "coerced norm reconstruction." Indeed, Kahan found that the exact wording of the law hardly matters when people decide whether they think someone was raped, while their cultural background matters a lot.
Contrary to those who blame Judge Fine's questioning on "liberalism," Kahan's research found that liberals and those with "egalitarian" values were more likely to empathize with victims in acquaintance rape cases where defendants claimed consent (though he emphasized general trends can never explain the decisions or actions of an individual judge). By contrast, those with more hierarchical values that emphasized traditional gender roles, particularly among older women, oddly enough, were more likely to side with the defense.
Kahan's paper also supplies an interesting background discussion of what he calls the "no means ...?" debate, contrasting norm-changing feminist advocates of a "no means no" interpretation of consent compared to scholarship on the concept of "token resistance" where women may resist sexual intimacy initially in circumstances where, sometimes, "no means yes." While the "standard [feminist] critique views the common law of rape ... as one means by which the state enforces male domination of women," he writes:
in the eyes of the those who subscribe to the conventionalist defense, it's the claim that common law reflects a “male point of view” that is ideologically motivated. The reality, according to the conventionalists, is that “no” does not always mean “no” in the minds of women either. Studies of college-aged women, they point out, show that a substantial proportion—some 40% overall, and over 60% of nonvirgins—report having engaged in “token resistance,” or saying “no” even though they “had every intention to and were willing to engage in sexual intercourse.” In one such study, “68.5% of the total sample reported saying no when they meant maybe."Feminist reformers often see the purpose of the law as changing those norms, writes Kahan, while "conventionalists" think the law should accommodate how women behave in the real world. Somewhat anticlimactically, Kahan's article concluded that "beliefs about the significance of verbal resistance to sex are culturally polarized."
I'm not sure what if any point I have to make at the end of this rambling adumbration other than to express fascination with how iconic such debates quickly become and how they often reveal more about the debaters than they do the facts at hand.