She’s Crazy (to Think We’ll Believe Her): Credibility Discounting of Women With Mental Illness in the Era of #metoo

SHE’S CRAZY (TO THINK WE’LL BELIEVE HER):

CREDIBILITY DISCOUNTING OF WOMEN WITH MENTAL

ILLNESS IN THE ERA OF #METOO

KATHERINE M. COLE*

ABSTRACT

“What? Don’t believe her. She’s crazy.” And often, we don’t. Women are fre-

quently disbelieved just by virtue of being women, and “crazy” is a convenient,

gendered shorthand to further discredit—regardless of whether or not the target

of such “credibility discounting” actually experiences mental illness. These

women are not, however, uniformly disbelieved in all aspects of their lives:

Credibility discounting is particularly potent for those women with mental ill-

ness reporting sexual violence, either because we suspect that they are lying or

we simply do not trust their perception of events.

This Note is the f‌irst analysis of credibility discounting at the juncture of gen-

der, sexual violence, and mental illness. Credibility discounts operate through-

out the course of litigation, from the decision whether to bring suit at all, the

ability to win, and even to valuation of damages. Of course, not all claims of

sexual violence have merit. But automatic assumptions that claims are false

merely because of the accuser’s identity are no more just than the opposite con-

clusion.

Sexual harassment law in particular operates to discredit women living with

mental illness. The “hostile environment” determination, at f‌irst glance,

appears cabined into objective and subjective inquiries. In practice, however,

women’s credibility is ref‌lexively and pervasively discounted. Even though the

objective standard is designed to be judged from the “perspective of a reasona-

ble person in the plaintiff’s position, considering ‘all the circumstances,’” the

relevant circumstances have not been effectively extended to mental illness.

This Note proposes adoption of a contextualized reasonableness standard that

consciously incorporates mental illness and recognizes that mental illness and

reasonableness are not mutually exclusive.

INTRODUCTION .............................................. 174

I. THE THEORETICAL FRAMEWORK OF CREDIBILITY DISCOUNTING ........ 178

*Stanford Law School, J.D., 2021. Many thanks to Rabia Belt for the inspiration and mentorship as well

as to Deborah Rhode for her support and guidance. I am incredibly lucky to have been one of Professor

Rhode’s students and to enter a legal profession made better by her inf‌luence. I hope this piece honors her

legacy. I would also like to thank the editors of GJGL, particularly Myunghee Sim, Lauren Katz, and Rachel

Scholz-Bright, for their hard work and editorial insight. © 2021, Katherine M. Cole.

173

A. THE INTERACTION BETWEEN SEXUAL VIOLENCE AND THE

CREDIBILITY DISCOUNT ................................ 179

B. MENTAL ILLNESS AS A DISCOUNT TO WOMEN’S CREDIBILITY . . . . . 183

1. Labeling Women “Crazy” Irrespective of Any Mental

Illness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

2. The Power of Mental Illness to Discount Credibility . . . . . 186

3. The Interaction of Mental Illness and #MeToo . . . . . . . . . 189

II. TRIPLE DISCOUNTING IN PRACTICE: WOMEN WITH MENTAL ILLNESS

REPORTING AND LITIGATING SEXUAL VIOLENCE................... 192

A. DISCOURAGING POTENTIAL PLAINTIFFS FROM BRINGING SUIT AT ALL 192

B. IMPAIRING PLAINTIFFS’ ABILITY TO WIN .................... 193

C. DISCOUNTING DAMAGES FOR PSYCHIATRIC INJURY ............. 194

1. Alleging Damages for Psychiatric Injury Risks Infecting

the Remainder of the Case . . . . . . . . . . . . . . . . . . . . . . . . 195

2. Direction of Causation Between Sexual Violence and

Psychiatric Injury May Be Disputed and Reversed . . . . . . 196

3. Valuation of Psychiatric Damages May Be Discounted. . . 198

III. THE CASE OF TITLE VII SEXUAL HARASSMENT: THE UNREASONABLE

PLAINTIFF ............................................. 199

A. OBJECTIVE INQUIRY .................................. 200

1. Title VII Does Not Protect the “Unreasonable” Plaintiff

with Mental Illness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

2. Mental Illness Makes Reasonable Claims Appear

Unreasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

B. SUBJECTIVE INQUIRY.................................. 203

C. RETHINKING THE REASONABLENESS STANDARD ............... 205

CONCLUSION ............................................... 209

INTRODUCTION

Imagine a woman who has been sexually assaulted. Or maybe she has been sexu-

ally harassed. Soon after, she begins noticing symptoms of an undiagnosed mental ill-

ness. She experiences bouts of depression and anxiety. She tells her psychiatrist she is

having trouble distinguishing dreams from reality. Memories intrude on her daily

thoughts, as does persistent fear and shame. She continues therapy and medication.

Eventually, she f‌iles suit. When she shows up at court, she is nervous, shaken, agi-

tated. Maybe she seems a little crazy, a little off. She cannot remember all the specif-

ics. Her story has idiosyncratic details that make her seem too sensitive—all he did

was compliment her hair . . . was she too sensitive and emotional about everything

else? Can she not take a joke? The alleged damages include emotional distress, and

her psychiatric history is under scrutiny. Experts suggest possible diagnoses. Does a

psychiatric label explain everything she says? She is frustrated—she knows what

she says is true, but why will no one believe her? She starts to doubt herself.

174 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXII:173

The defendant’s attorney voices everyone’s doubts: Her trial testimony should

not be believed. Either she is lying now, or the poor thing’s original perceptions

were mistaken, just the product of illness. Maybe the attorney is right.

This story is hypothetical but not implausible. Women’s stories of sexual vio-

lence are time and again doubted and discredited. False reporting is rare (though

diff‌icult to measure, likely less than 5%), yet many incorrectly believe the preva-

lence of false reporting is much greater.

1

In one representative survey, almost

10% of respondents went so far as to “believe that in most of these cases nothing

happened” and the accusers are “purposefully lying” or “misremembering or con-

fused about what rises to the level of sexual harassment or assault.”

2

Introducing

mental illness only magnif‌ies that disbelief.

3

Questions of credibility are almost inevitably implicated by allegations of sex-

ual violence. In the prototypical “he said, she said” credibility contest, one story

is pitted against another, and the factf‌inder must choose the more credible story-

teller. Women tend to lose.

4

As a high-prof‌ile example, comedian Bill Cosby

reportedly told some of his assault victims they would not be believed if they

spoke out.

5

Though Cosby was eventually convicted of three counts of aggra-

vated indecent assault, it took over f‌ifty years, a hung jury, sixty different wom-

en’s accusations, and Cosby’s own confession to using Quaaludes to “have sex

with young women” before that happened.

6

1. See Lisa Avalos, The Chilling Effect: The Politics of Charging Rape Complainants with False

Reporting, 83 BROOK. L. REV. 807, 816–17 (2018). Many estimates of false reports include

“unfounded” accusations or those that qualify as some lesser offense, muddying any precise

determination of falsity. Jan Jordan, Beyond Belief? Police, Rape and Women’s Credibility, 4 CRIM.

JUST. 29, 35–36 (2004) (cited in Tuerkheimer, infra note 7, at 17 n.83).

2. Measuring #MeToo: A National Study on Sexual Harassment and Assault, STOP STREET

HARASSMENT 1, 36 (2019), http://www.stopstreetharassment.org/wp-content/uploads/2012/08/2019-

MeToo-National-Sexual-Harassment-and-Assault-Report.pdf [hereinafter Measuring #MeToo].

3. See, e.g., Sandra Newman, What Kind of Person Makes False Rape Accusations?, QUARTZ (May

11, 2017), https://qz.com/980766/the-truth-about-false-rape-accusations/ (referencing mental illness as

a primary motivator of false reports).

4. Women are most often the accusers. About one in f‌ive women have been raped during their lives,

while for men the rate is closer to one in seventy-one. Statistics About Sexual Violence, NAT’L SEXUAL

VIOLENCE RES. CTR., https://www.nsvrc.org/sites/default/f‌iles/publications_nsvrc_factsheet_media-

packet_statistics-about-sexual-violence_0.pdf (last visited Jan. 31, 2021) (citing MICHELE C. BLACK ET

AL., NAT’L CTR. FOR INJURY PREVENTION & CONTROL, CTRS. FOR DISEASE CONTROL & PREVENTION,

THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2010 SUMMARY REPORT 1 (2011)).

When including attempted rape, the probability for women jumps up to 46%. See Diana E. H. Russell &

Nancy Howell, The Prevalence of Rape in the United States Revisited, 8 SIGNS 688, 691–92 (1983). A

2019 study found that women are over twice as likely as men to experience verbal sexual harassment

(76% versus 35%) and, likewise, almost twice as likely to report experiencing some form of sexual

harassment and/or assault in their lifetime (81% versus 43%). Measuring #MeToo, supra note 2, at 10.

5. See Noreen Malone, ‘I’m No Longer Afraid’: 35 Women Tell Their Stories About Being Assaulted

by Bill Cosby, and the Culture That Wouldn’t Listen, CUT (July 26, 2015, 9:00 PM), https://www.thecut.

com/2015/07/bill-cosbys-accusers-speak-out.html.

6. See Deborah Tuerkheimer, The Deck Is Stacked Against Every Sexual Assault Victim in America.

The Cosby Case Is No Different., SLATE (June 18, 2017, 12:24 PM), https://slate.com/human-interest/

2017/06/the-cosby-case-is-another-example-of-credibility-discounting-in-sexual-assault-cases.html.

2021] SHE’S CRAZY (TO THINK WE’LL BELIEVE HER) 175