A Credibility Gap in Cases of Rape
An interview with Prof. Deborah Tuerkheimer
CLE Credit — Approved in 5 States
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.
Additional Resources
Read the Book: Credible: Why We Doubt Accusers and Protect Abusers, by Deborah Tuerkheimer, (Harper Wave, 2021)
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.
- For more about the case, see “The Campus Rapist Hiding in Plain Sight,” by Barbara Bradley Hagerty (The Atlantic, July 15, 2019).
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 While these rules are no longer in force, the Model Penal Code of 1962 was influenced by these rules and their legacy still persists.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.
- Example, the case of Cassandra Weeks. In this case, despite being struck, threatened, and the presence of a gun, a rape conviction was overturned due to the perceived insefecientcy of physical resistance. State v. Powell, 438 So.2d 1306, 1307, 1308 (La. Ct. App. 1983)
Verbal Resistance Requirements (in place in about ½ of all states). In states with a verbal resistance requirement, the victim has to manifest unwillingness.
- Example (New York): “Lack of consent results from… in addition to forcible compulsion, circumstances under which, at the time of the act…, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances.” (emphasis added, PEN § 130.05)
- Some state laws, in contrast, permit cases to proceed where there is a lack of affirmative consent by the victim. For more, Deborah Tuerkheimer, “Affirmative Consent,” Ohio State Journal of Criminal Law 13, no. 2 (2016): 448
About Prof. Deborah Tuerkheimer
“One challenge in prosecuting rape cases lies in the societal misconceptions about what constitutes 'real rape.'”
Professor Deborah Tuerkheimer joined the Northwestern Law faculty in 2014 after serving as a professor at DePaul University College of Law since 2009 and the University of Maine School of Law since 2002. She teaches and writes in the areas of criminal law, evidence, and feminist legal theory. Her book CREDIBLE: Why We Doubt Accusers and Protect Abusers was published in October 2021. In 2014, Oxford University Press published her book Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice. She is also a co-author of the casebook Feminist Jurisprudence: Cases and Materials and the author of numerous articles on sexual violence and domestic violence. After clerking for Alaska Supreme Court Justice Jay Rabinowitz, she served for five years as an Assistant District Attorney in the New York County District Attorney's Office, where she specialized in domestic violence prosecution. In 2015, Tuerkheimer was elected to the American Law Institute, an esteemed group of judges, lawyers, and legal scholars dedicated to the development of the law.
