Does “no”always mean “no”to sex? More generally, what standards should the law use to evaluate whether a woman has genuinely consented to sexual intercourse or whether she could reasonably have been understood by a man to have done so? Or more basically still, how should the law define “rape”? These questions have been points of contention within and without the legal academy for over three decades

The dispute concerns not just the content of the law but also the nature of social norms and the interaction of law and norms. According to critics, the traditional and still dominant common law definition of rape—which requires proof of “force or threat of force” and which excuses a “reasonably mistaken” belief in consent—is founded on antiquated expectations of male sexual aggression and female submission. Defenders of the common law reply that the traditional definition of rape sensibly accommodates contemporary practices and understandings—not only of men but of many women as well. The statement “no,” they argue, does not invariably mean “no” but rather sometimes means “yes” or at least “maybe.” Accordingly, making rape a strict-liability offense, or abolishing the need to show that the defendant used “force or threat of force,” would result in the conviction of nonculpable defendants, restrict the sexual autonomy of women as well as men, and likely provoke the refusal of prosecutors, judges, and juries to enforce the law.

This Article describes original, experimental research pertinent to the “no means...?” debate. In both law journals and law school classrooms, that debate is frequently brought into sharp focus—and sharp contention—by examination of a controversial case, Commonwealth v. Berkowitz. In an experimental study, a large and diverse national sample of adults reviewed the key facts in Berkowitz, including the uncontested fact that the victim in the case repeatedly said “no” immediately before and during intercourse with the defendant. The subjects then indicated whether they believed the victim consented to sex or could reasonably have been understood to have done so by the defendant. Subjects also indicated how they believed the case should be decided after being supplied with the common law definition of rape or with one of several reform alternatives. The goal of the study was not merely to generate data on whether people perceive “no” as sometimes meaning “yes” to sex and on how different legal standards affect their willingness to convict a man of rape in a case presenting that question. The study also aimed to connect the “no means...?” debate to a psychologically realistic account of how and why people form such perceptions and make such judgments.

Culture, Cognition, and Consent: Who Perceives what and why in Acquaintance-Rape Cases