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Decades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive deception of women as more wrongful than deception of men, and that such perceptions can affect both case outcomes and decisions to regulate.

This hypothesis is consistent with research into gender stereotypes, which has shown, for example, that women are perceived as less capable of protecting themselves against deception, and that men have special duties to protect women. Our approach is also of a piece with recent work on moral typecasting, which explores how attributions of agency and patiency affect perceptions of moral wrongfulness, as there is evidence that men tend to be associated with agency and women with patiency.

We report the results of three experimental vignette studies, using simple hypotheticals to elicit subjects’ off-the-cuff intuitions about men and women deceiving and being deceived. We examine the effects of gender by randomly varying party names (Ashley or Josh), by randomly varying the gender associated with a product—e.g., beard trimmer vs. hair dryer—and by randomly varying the gendered noun identifying the victims of a fraud (brothers vs. sisters). We ask subjects to report on their reactions to different deceptive situations by reporting on the ethicality of a behavior, on their support for a regulatory approach, and on their preference for level of punishment. We also explore differential responses of male- and female-identified subjects.

We find preliminary support for the proposition that men deceiving women and firms deceiving women are regarded as somewhat more problematic than men or firms deceiving men. We find suggestive but limited evidence that paternalistic regulation of women’s transactions is more welcome than that of regulation of men’s consumer choices. We find robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong. The studies reported here also suggest the challenges of studying gender as a causal explanation for legal decision-making. We suggest how future research might tease out the explanatory mechanisms that link perceptions of gender to perceptions of deception.

Publication Citation

Northwestern University Law Review, Vol. 118, Issue 1, Pp. 193.