A Credibility Gap in Cases of Rape

An interview with Prof. Deborah Tuerkheimer

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.

 

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 While these rules are no longer in force, the Model Penal Code of 1962 was influenced by these rules and their legacy still persists.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.

  • 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

 

 

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