Is caveat emptor indeed “a rule for he and not for she”? This is only one of the excellent questions raised by co-authors Gregory Klass and Tess Wilkinson-Ryan in their recent symposium contribution Gender and Deception. The question is induced by classical casebook entries that seem to reflect an increased judicial willingness to protect women from market deception. Recall, for example, the many “Arthur Murray cases” in which franchised dance studios around the country made exuberant profits from making elderly women with no dancing experience believe that they are only a few more lessons away from becoming professional dancers. However, to the extent such a gender-based approach exists (which is unclear at best), it often comes with a price not only for male buyers. Too often, as the co-authors importantly remind readers, intervention on behalf of deceived women seems to reflect and perpetuate gender biases regarding their capabilities—disrespectfully portraying them as gullible.
Given those implications, Klass and Wilkinson-Ryan delved into the relationship between gender and market deceit armed with exciting empirical tools. They designed three vignette-based studies that, in their words, “focus on common moral attitudes toward deception.” The authors report that the first study yielded the most significant results. This study tested the moral judgments of online-survey takers regarding a simple transaction between two individuals: a seller and a buyer of a used kitchen table. The deceiving party presented the table as an antique and sold it to the deceived buyer for $500, although the table was bought in a big box store, such as Target or Walmart, and was worth only $200. Participants identifying themselves as men, women, or nonbinary (counted with women), were asked to consider three different levels of buyer’s misrepresentation (implied, nondisclosure, and explicit lie) and ranked how ethical they were on a 1 to 7 scale.
The authors predicted that participants’ moral judgments study would show greater tolerance when the deceiving and the deceived parties are of the same gender, and vice versa. But, despite these nuanced forecasts, the study found that subjects viewed only one combination—“men fooling women”—to be particularly objectionable. It also showed that corporations were perceived as male, which made their deceptions of women especially problematic. These seemingly modest results, the authors explain, are original and valuable nonetheless, in part because previous experimental moral psychology studies had demonstrated a tendency to treat moral agents’ identity features, such as gender, “as noise rather than signal.”
The second study reported in Gender and Deception built on the first. It tested whether the heightened wrongfulness of men fooling women would extend to enhanced support of protective regulation to products typically sold to women. Here, the authors designed vignettes centering the possible consumer protection regulation of similarly priced goods associated more with men (e.g., beard trimmers) or women (e.g., hair dryers). The main finding of this study was “a small but statistically significant effect of product gender on the propensity to regulate.” It demonstrated greater support—by male and non-male participants alike—for restrictive regulation of products associated with women.
In the third and last study, the authors examined subjects’ willingness to respond to deception with punitive measures. Here, they introduced a scenario of criminal fraud against either two brothers or two sisters and predicted a greater tendency to punish the defrauding party (a man) when the victims were women. To the authors’ admitted surprise, the study did not find a statistically significant difference in punitive inclination based on victims’ gender. Instead, the data suggested that it was the subjects’ features—age, gender, and political ideology—that played some role in the length of sentences assigned in each case.
So, is caveat emptor indeed “a rule for he and not for she”? Not so much, according to the three original studies reported by Klass and Wilkinson-Ryan, which supported a narrow positive answer: when the buyer is a woman deceived by a man in the context of buying used furniture. Perhaps the modern retraction from caveat emptor is less influenced by the entry of vulnerable buyers into the market, as the authors at some point propose, and is more related to the increased diversity of market actors’ moral views. Might it be that the driving force behind less tolerance of market deception is women’s enhanced active participation in the market and growing role in business and legal decision-making? This alternative is tempting because it presents a less victimizing or paternalistic view of the evolution of legal rules—one that a feminist approach to contracts would more easily embrace.
While the authors do not suggest such an explanation, I was enthused to learn that their most significant finding might support the above feminist hypothesis. In their first study on moral judgments of deceptions, the authors found “robust support for the proposition that women are more likely than men to regard deception in the marketplace as an ethical wrong.” It turns out that victims’ gender notwithstanding, male respondents ranked deceitful behaviors as more ethical than female and nonbinary respondents. Klass and Wilkinson-Ryan do not elaborate much about the broader meaning of their salient finding. Indeed, they are cautious enough to stress that, at this stage of their work, they have little to say about whether or not men are more predisposed than women to engage in deceptions. They do allude, however, to a correlation they describe as both probable and desirable between believing that conduct is wrongful and refraining from engaging in it. They also mention others who had claimed and provided evidence that women are less inclined to deceive. Additional works similarly demonstrate an over-representation of men in fraud, including in scientific research, fraud cases in 2020-2021, corporate crime, and white-collar crimes.
Therefore, as we await with anticipation additional experiments to follow the research agenda that the article provides, could we consider the possibility that it is women’s expectation of morality in the market and possibly their honesty that makes at least some of the difference? Is it conceivable that Gender Deception’s reported results align more with Carol Gilligan’s work on women’s different voices than with the judges that helped female dancers while patronizing them? Indeed, at one point, Klass and Wilkinson-Ryan generalize their findings as follows: “Women subjects were more likely to express that consumer deception is unethical and more likely to support regulation of consumer deception or risky consumer products. They favored lower prison sentences, however, than men.” Significantly, more than demonstrating stereotypical female fragility, such a description seems to capture a specific version of morality—one that leading feminists have called the ethics of care.
Besides feminism, the hypothesis of moral diversity would also fit game theories that have long taught us about the salient role of reciprocity in actors’ decision-making. On this view, if women expect more integrity from themselves and others and accordingly are believed to be less involved in deception than men, then (in line with the first study) deceiving them might become less acceptable, especially when the deceivers are men who are assumed to be less committed to honesty. Similarly (in line with the second study), enhanced restraint of deceit related to products associated with female users may be explained less due to women’s vulnerability and more as further support of reciprocity.
All told, Gender Deception is a fascinating and promising work that should become, as the authors propose, “the very beginning of a larger project in the psychology of consumer protection.”
