Why are people who report rape so often disbelieved, and how has the law contributed? Whether police investigate, prosecutors charge, and jurors convict often turns on whether the person reporting is believed.
In this TalksOnLaw interview, recorded in the spring of 2022, Joel Cohen speaks with Deborah Tuerkheimer, Class of 1967 James B. Haddad Professor of Law at Northwestern Pritzker School of Law, a former Manhattan prosecutor, and the author of CREDIBLE: Why We Doubt Accusers and Protect Abusers. Tuerkheimer coined the term "credibility discount" for biased disbelief of the less powerful party. She explains how it works at each stage of a rape case, traces it to legal rules both past and present, and discusses what could improve the response to survivors, including restorative justice. The conversation includes descriptions of sexual assault.
Abby Honold's Story
Tuerkheimer opens with Abby Honold, a college student in Minnesota. At a tailgate, Honold went with a friend of a friend to his apartment across the street to bring back more alcohol, and he raped her several times. She returned crying and disheveled, someone called 911, and the report was immediate, which Tuerkheimer notes is not typical. Honold recalls officers refusing to let a friend ride with her in the ambulance because the friend might help her get her story straight, and telling her she probably would not want to tell her mother. The nurse who collected the forensic evidence recalled one of the most violent attacks she had seen. The investigating detective reportedly dismissed it with a remark that kids are into rough sex. The man said it was consensual, and there was no arrest for a long time. Back on campus, Honold was branded a liar. When a prosecution finally came, she was not the only woman he had assaulted; as so often, Tuerkheimer says, it took more than her word. Later, when a different man sexually assaulted her, Honold chose not to report it. To Tuerkheimer, the case shows both the harm of disbelief and its silencing effect.
Trustworthiness, Plausibility, and Power
The credibility discount, Tuerkheimer explains, appears in workplaces, medicine, classrooms, and intimate relationships, but it peaks in sexual assault cases, where sexual entitlement, notions of consent, and investment in the status quo collide, usually across a power imbalance. Credibility has two parts: the trustworthiness of the person reporting and the plausibility of the claim. A woman who alleges abuse can call up familiar figures, such as the gold digger, the attention seeker, the political pawn, or the confused woman, that have nothing to do with her actual trustworthiness. Cohen notes that false reports occur but are rare, citing a figure of 4 or 5 percent. Tuerkheimer agrees that not every allegation is true. Her concern is the gap between how often false allegations occur and how often people assume them. She calls the forces behind that gap the "credibility complex": culture, law, and systems staffed by police officers, jurors, and Title IX officers who share the culture. Credibility, she says, is a form of power, distributed along familiar lines.
Trauma, Memory, and the Investigation
Many officers, though not all, Tuerkheimer says, have not absorbed the neuroscience of trauma, which suggests that a person describing a traumatic event is unlikely to give a complete, linear, detailed account. Officers understandably look for an account that will hold up under proof beyond a reasonable doubt. Cohen raises her distinction between central details, which the brain tends to record under threat, and peripheral ones. She describes a campus case, decided under the lower preponderance standard, in which the accuser's inability to remember where she was sitting before the assault was enough for the decision-maker to disbelieve her. Tuerkheimer favors trauma-informed interviewing and investigation, not because it always points to the answer, but because it keeps officers working a case. Too often, she says, investigations stop once a case is labeled "he said, she said." Researchers who studied shelved rape kits concluded that if officers kept looking for evidence, more cases would reach prosecutors, pleas, and trials. Cohen notes that an arrest requires only probable cause.
A Trio of Special Rules
Rape law, Tuerkheimer explains, once carried three rules that applied to no other crime. A corroboration requirement kept a case from reaching a jury on the accuser's word alone. A prompt-outcry rule barred prosecution unless the complaint came quickly, sometimes within days or a few months, unlike a statute of limitations that applies across the board. A cautionary instruction told jurors to be especially careful about convicting. All three were written into the Model Penal Code in 1962 and reflected in state laws. Most have since been abolished or relaxed, but Tuerkheimer sees informal vestiges today, especially in the sense that a "he said, she said" case is doomed. An accuser's word, she says, is evidence, and it can be powerful evidence.
Intoxication and Marriage
Most victims are women and girls, Tuerkheimer notes, but men, boys, and nonbinary people are victims too; some of her most searing cases as a prosecutor involved teenage boys. Intoxication triggers blame, she says, and the law reflects it. In many jurisdictions, she said then, a person who is drugged without her knowledge is treated as a true victim in a way that a person who chose to drink is not. She describes a woman who became extremely intoxicated at a wedding, was sexually assaulted, and could not get justice because her intoxication was voluntary. From a survivor-centered view, Tuerkheimer argues, there should be no difference. Marriage leaves another trace. The common law exempted husbands from rape laws entirely. That rule has been abolished in every state, with reform beginning around the 1970s, but in some states, taking advantage of a spouse's extreme intoxication or "physical helplessness" is still treated differently. Tuerkheimer uses the law as a mirror for cultural blind spots.
Unfounding and Attrition
Police officers share the culture's biases, Tuerkheimer says, and a feedback loop compounds them: when officers see similar cases dismissed, they conclude such cases cannot go forward. Studies find high rates of "unfounding," a catch-all classification that lets officers close a case for many reasons, including doubts about proof, suspicion of a false report, or a complainant's decision not to proceed, which officers can encourage. The rates vary by jurisdiction but are high enough to raise questions, especially when an arrest requires only probable cause. Most sexual assaults are never reported, and the reported cases are whittled down at each stage, from police to prosecutors to a plea or trial to incarceration. Cohen and Tuerkheimer also discuss a Goldilocks problem: a survivor who seems too emotional may be dismissed as hysterical, and one who seems flat or detached may be seen as lying.
The Perfect Victim
The stranger-rape paradigm produces an image of the perfect victim. Before the assault, she is dressed modestly, is not drinking, and has no date-like contact with her attacker. During it, she fights back. Afterward, she reports at once, recounts everything perfectly, and cuts off all contact. She is also likely to be white, affluent, English-speaking, and documented. Every departure from the archetype costs credibility. Cohen suggests that a victim's dress and sexual history should be off limits. Tuerkheimer agrees in an ideal world, but notes that workplace sexual harassment law under Title VII still permits a focus on "provocative" dress, which the Supreme Court has said is relevant to whether harassment was welcome. At R. Kelly's trial, she recalls, the judge questioned why the defense was still asking a witness about what she wore. Defense attorneys have a job to do within ethical limits, Tuerkheimer says, and such questioning will continue until it stops working with juries.
Resistance, Freezing, and Consent
Traditionally, every state required resistance, sometimes resistance "to the utmost." Cohen describes a case in which a woman was slapped, shown a gun, and threatened; because she did not resist further, the rape conviction was overturned. Tuerkheimer identifies the woman as Cassandra Weeks, says her fear was deemed unreasonable, and places the case in the modern era. Verbal resistance requirements, under which passivity or silence counts as consent, were then the rule, she said, in about half or more of the states. She considers states that define consent affirmatively, requiring an expression of willingness, closer to the mark. Asked about freezing, she points to research on tonic immobility, a not uncommon paralysis response to assault, and notes that some survivors of childhood abuse cope by staying passive. A person may not resist and still not consent, she says, and the law has not fully captured that.
Monsters and Credibility Inflation
The same paradigm casts the perpetrator as an obvious monster. Most perpetrators, Tuerkheimer says, are friends, neighbors, coworkers, and family members. When an accused man does not fit the image, especially a man of status, people are more apt to dismiss the allegation and rally behind him. The flip side of the credibility discount is credibility inflation, a presumptive boost for the powerful. Cohen raises Bill Cosby, then the star of the most popular sitcom. Tuerkheimer notes that the early accounts against him went nowhere, and that against someone like that it often takes many accusers to gain traction. Cohen notes that some Black women who came forward against Cosby were accused of betraying their community. Tuerkheimer says Black survivors she spoke with described pressures particular to accusing a Black man, especially in the criminal setting.
Trust, Blame, Care, and Restorative Justice
For reform, Tuerkheimer turns to trust, blame, and care. Trust can grow by discarding myths about perfect victims and monster abusers and by educating police, and jurors through expert testimony, about trauma. Blame can be checked by recognizing the patterns that trigger it, such as intoxication, dress, and sexual history, and by training people in official roles. Care means closing a "care gap": the tendency to worry more about consequences for the powerful than about the person harmed, a gap survivors can internalize. Her most surprising finding was how many survivors described being disbelieved as a second trauma, as bad as or worse than the abuse. She closes with restorative justice, which starts from the offender's acceptance of responsibility and brings together those affected to repair the harm. It is most established on college campuses; its use as criminal diversion is newer. She tells of Sophia, a high school student whose assailant came to see that his belief that a "good girl" had to be pushed was wrong, and who, at her request, told others she had not lied. Without institutional commitment, a good-faith offender, and a skilled facilitator, she cautions, the process can seem like sweeping a problem under the rug.
What to Know Now
The law has kept moving. The American Law Institute finished revising the Model Penal Code's sexual assault article in 2022; its official text is in production. The new code drops the 1962 prompt-complaint, corroboration, and cautionary-instruction provisions, defines consent as willingness to engage in a specific act, and treats a clear "No" or "Stop" as establishing lack of consent. It does not adopt affirmative consent: consent may be inferred from action or inaction in context. Some scholars, and the Justice Department during drafting, criticized that choice; members who had opposed earlier drafts saw them as too close to affirmative consent. States have acted piecemeal. Minnesota amended its law in 2021 to cover voluntarily intoxicated victims after its supreme court reversed a conviction in State v. Khalil, but a 2022 survey found 21 states still limit incapacity to involuntary intoxication. Ohio removed its spousal exceptions in 2024, and New York broadened its definition of rape the same year.
On campus, the 2024 Title IX rule was vacated in January 2025, and the 2020 rule, with live hearings and cross-examination at colleges, is back in force; the Education Department formally restored it on September 29, 2026. Supporters see stronger due process for the accused; critics see a deterrent to reporting. High-profile cases have tested evidence rules. New York's highest court reversed Harvey Weinstein's conviction in 2024 because jurors heard about uncharged allegations. A 2025 retrial produced one conviction, one acquittal, and a hung count; after a third jury deadlocked in 2026, prosecutors dropped that count, and he was sentenced to 15 years on September 23, 2026. A federal appeals court affirmed R. Kelly's convictions and 30-year sentence in 2025. Bill Cosby's conviction was vacated in 2021 on the ground that he had relied on a prosecutor's promise not to charge him.
Reporting and attrition remain stark. In the federal victimization survey for 2024, about 24 percent of rapes and sexual assaults were reported to police. RAINN now estimates that 25 of every 1,000 sexual assaults end in incarceration. Every state has adopted at least one rape kit reform, and the federal Abby Honold Act of 2022, named for the survivor in this program, funds trauma-informed police training; some critics caution that such training can overstate the science or tilt investigators toward belief. Tuerkheimer's central point holds: who is believed shapes every stage of a rape case.
