In cases of sexual assault, the credibility of the victim is crucial to whether law enforcement will investigate the assault, prosecutors will bring charges, and whether the jury will ultimately find the defendant culpable. Time and again, victims who come forward recount being disbelieved at each stage of the criminal justice system, a function of what Professor Deborah Tuerkheimer calls credibility discounting. The credibility discount is biased disbelief of the more vulnerable, less powerful party. Tuerkheimer discusses how the credibility discount is at its apex in sexual assault cases and impacts law enforcement intake and investigation in rape cases. She also explores the laws that have made rape charges particularly difficult in the United States such as unique corroboration requirements, prompt outcry rules, cautionary jury instructions, marital rape exceptions as well ill-conceived intoxication rules and resistance requirements. Tuerkheimer explores the surprising legal history of rape law and the formal and informal burdens still imposed on victims today.
Example: the Case of Abby Honold
Prof. Tuerkheimer discusses the details of Abby Honold’s violent attack and rape by an acquaintance while attending college in Minnesota. While the rape was reported immediately, and physical injuries were present, law enforcement determined that there was not enough evidence to file criminal charges. Subsequently, after additional rapes by the same man were reported, he was charged and ultimately plead guilty.
Historical Requirements Restricting Rape Claims in the United States. While these rules are no longer in force, the Model Penal Code of 1962 was influenced by these rules and their legacy still persists.
Corroboration Requirement - accuser’s word not sufficient for an indictment.
See Davis v. State, 48 S.E. 180, 181-182 (Ga. 1904)
Prompt Outcry Rule - victim had to make accusation quickly or be disqualified. The duration for such cases was much shorter than the standard statute of limitations.
Model Penal Code § 213.6 at 151 (American Law Institute, Proposed Official Draft 1962)
Cautionary Instruction to Juries - explicit instructions to juries warning that they use special suspicion evaluating the testimony of a rape complainant.
See People v. Rincon-Pineda, 538 P.2d 247, 252 (Cal. 1975)
Physical Resistance Requirements. States have employed a variety of proof of resistance requirements in order to sufficiently demonstrate that an attack was “forcable.” These standards, according to Prof. Tuerkheimer have been used to disqualify otherwise credible claims.
Verbal Resistance Requirements (in place in about ½ of all states). In states with a verbal resistance requirement, the victim has to manifest unwillingness.