INCREDIBLE WOMEN: SEXUAL VIOLENCE AND THE CREDIBILITY DISCOUNT.

• Author: Tuerkheimer, Deborah
• Position: ARTICLE

Credibility is central to the legal treatment of sexual violence, as epitomized by the iconic "he said/she said" contest. Over time, the resolution of competing factual accounts has evidenced a deeply skeptical orientation toward rape accusers. This incredulous stance remains firmly lodged, having migrated from formal legal rules to informal practices, with much the same result--an enduring system of disbelief. Introducing the concept of "credibility discounting" helps to explain the dominant feature of our legal response to rape. Although false reports of rape are uncommon, law enforcement officers tend to default to doubt when women allege sexual assault, resulting in curtailed investigations as well as infrequent arrests and prosecutions. Credibility discounts, which are meted out at every stage of the criminal process, involve downgrades both to trustworthiness (corresponding to testimonial injustice) and to plausibility (corresponding to hermeneutical injustice).

By conceptualizing prejudiced disbelief as a distinct failure of justice, one deserving of separate consideration, we may begin to grasp the full implications of credibility discounting, beyond faulty criminal justice outcomes. Attending to this failure of epistemic justice on its own terms advances a conversation about how best to reform institutions so that credibility judgments do not perpetuate inequality. To this end, credibility discounting should count as actionable discrimination. Under certain conditions, moreover, this recognition raises constitutional concerns. When rape victims confront a law enforcement regime predisposed to dismiss their complaints, they are effectively denied the protective resources of the state.

INTRODUCTION 3 I. INCREDIBLE WOMEN 8 A. The Centrality of Credibility 9 B. Components of Credibility 13 C. Discounting: An Overview 14 II. MAPPING THE CREDIBILITY DISCOUNT 20 A. Incredulous Law 21 1. Corroboration Requirements, "Prompt Outcry" Rules, and Cautionary Jury Instructions 21 2. Substantive Definitions of Crime and Defense 25 B. Incredulous Law Enforcement 27 1. Police 28 2. Prosecutors 36 III. THEORIZING THE CREDIBILITY DISCOUNT 41 A. Failures of Belief 42 B. Failures of Understanding 46 IV. DISCOUNTING AS DISCRIMINATION 50 A. Toward Legal Redress 50 B. Credibility Discounting as Unequal Protection 52 CONCLUSION 56 INTRODUCTION

Rape allegations are, and always have been, deeply intertwined with questions of credibility. In the paradigmatic case of "he said/she said," accuser and accused offer two opposing versions of events: one party is telling the truth; the other is not. To pick between competing accounts, the decider must judge credibility.

Accusers--typically women (1)--do not tend to fare well in these contests. Over time, skepticism of rape complaints has remained firmly lodged, migrating from formal legal rules to informal practices, toward much the same end--the dismissal of women's reports of sexual violation. Although systemic disbelief is variegated, (2) the staying power of what I call "credibility discounting" is the dominant feature of our legal response to rape. (3)

While I will later elaborate on this idea of credibility discounting, I use the term to refer to an unwarranted failure to credit an assertion where this failure stems from prejudice. (4) Abundant evidence exists that credibility discounts are meted out at every stage of the criminal process: by police officers, (5) prosecutors, (6) jurors, (7) and judges. (8) So too are credibility discounts offered by those who form judgments about the veracity of rape accusations from outside the criminal process. (9)

This has always been true, but ongoing sociolegal developments have further elevated the importance of these evaluations. One such development has been the gradual dislodging of stranger rape as archetypical, (10) accompanied by a growing recognition that the vast majority of sexual violence is committed by an acquaintance without the use of weapons or abundant physical force. (11) This greater awareness has in turn propelled nationwide efforts to eliminate the traditional force requirement from the statutory definition of rape. (12)

With this progression toward consent-based understandings of sexual assault, (13) added pressure has been placed on fact-finding in cases that hinge on credibility. The difficulty of fact-finding exists regardless of how consent is defined, (14) but controversy over affirmative consent (15) has increased the salience of factual discrepancies while also activating the widespread perception that word-on-word (normally "he said/she said") cases are not provable. For this reason, credibility discounting threatens to stall progress toward modernizing rape law. (16)

Credibility discounting in the criminal justice system also hampers ongoing work in the campus sexual assault setting. Rather than focusing on colleges' obligation to provide an educational environment that allows all students, regardless of gender, to learn and thrive, (17) policymakers are essentially asking administrators to fill a void created by a dysfunctional criminal legal process. (18) While understandable, this impulse to work around the criminal justice system (19) is ultimately doomed to failure. Institutions of higher education cannot substitute for the criminal justice system, but the bias perceived as endemic to criminal justice outcomes encourages resort to this alternative.

Bias is not confined to the criminal justice system, of course, and campus adjudication requires university officials to assess credibility. Word-on-word scenarios are even more commonplace in the university setting (as compared to the criminal justice arena) because college disciplinary procedures lack compulsory mechanisms for obtaining corroborating evidence. (20) Without the benefit of search warrants, subpoenas, and grand jury investigations, administrators frequently rely in full on the parties' accounts of what occurred. When these accounts diverge, as is typical, credibility discounting threatens to impair the integrity of campus proceedings.

Identifying this dynamic enables a more nuanced approach to the design of college disciplinary procedures. For instance, one way of making sense of the preponderance of evidence standard--the standard that, although controversial, (21) has now been adopted by most universities (22)--is that it represents an attempt to compensate for longstanding and continuing credibility discounts assigned to women alleging rape on campus. (23) Measures to target these discounts directly, (24) if effective, might ultimately shift the calculus regarding the appropriate burden of proof.

As this portrayal of legal and policy flux suggests, we are at a liminal moment for sexual assault reform both on and off campus. Because credibility discounting has the potential to thwart the evolution of sound laws and procedures regarding rape, exposing the phenomenon assumes particular urgency.

This Article provides a first conceptual analysis of the systemic discounting of rape accusers' credibility. (25) It does so by situating prejudiced disbelief as a separate failure of justice, one itself deserving of consideration. Only by attending to this failure of justice on its own terms can we begin to fathom the full harm to victims (26)--quite apart from downstream effects on criminal justice outcomes. (27)

The analysis proceeds in four parts. Part I begins by elaborating on the centrality of credibility assessment to the processing of rape allegations. Although the availability of corroborative evidence complicates conventional accounts of the "he said/she said" model, unwarranted disbelief nonetheless undermines effective investigation and accurate adjudication. After describing this dynamic, the discussion disaggregates the construct of credibility. It then introduces the concept of discounting.

Part II documents the phenomenon of credibility discounting. Throughout history, rape law formally embedded deep skepticism of sexual assault allegations. The systemic disregard of rape victims was accomplished through a set of unique legal requirements--corroboration, (28) prompt outcry, (29) and cautionary jury instructions (30)--along with a special defense to rape for a victim's "social companion." (31) While much of this legal regime has been dismantled, credibility discounts have endured by relocating to the realm of law enforcement practice. (32)

Part III provides an epistemological account of credibility discounts that casts new light on the processing of rape allegations. A main contribution in this regard is to transplant the philosophical idea of epistemic injustice to legal scholarship. Epistemic injustice encompasses both the injustice of disbelief (testimonial injustice), which entails the downgrading of a speaker's perceived trustworthiness due to prejudice, (33) and the injustice of misinterpretation (hermeneutical injustice), which prevents a person from making sense of her experience and protesting it in comprehensible form. (34) Each category of epistemic injustice flows from structural inequalities; each results in a primary harm and a further cascade of harms; and each pervades the criminal justice system's treatment of rape.

Part IV situates credibility discounting within law, arguing for its recognition, under delineated circumstances, as actionable discrimination. Without needing to resort to a new cause of action, I urge the application of existing anti-discrimination frameworks to the systemic provision of credibility discounts. To ground this proposal, I sketch a new equal protection claim--a claim premised on the insight that, when rape victims confront a law enforcement regime predisposed to dismiss their complaints, they are effectively denied the protective resources of the state.

This Article concludes by drawing attention to the political dimensions of epistemic justice and their bearing on equality...