“He Said, She Said”

In many ways, these are encouraging times for rape law reformers.

A growing number of states are modernizing their criminal law definitions—most now recognize that sexual assault turns on the absence of consent rather than the use of physical force, which was traditionally required. The movement toward redefining sexual violence has been even more dramatic on college campuses, where affirmative consent standards are proliferating. Thanks to student activism and engagement by the Obama administration, universities, more than ever, are reckoning with a problem that once was mostly ignored.

Yet despite these important advances, one obstacle to continued progress has been overlooked: The archetypical “he said/she said” case, in which an accuser and an accused offer two opposing versions of events.

To pick between competing accounts in this scenario, the chooser must evaluate credibility. Accusers (usually women) do not generally fare well in these contests. Indeed, skepticism of rape complaints has long been a dominant feature of our legal response to rape. Today, the pervasive dismissal of women’s reports of sexual violation—or what I call “credibility discounting”—threatens to blunt the impact of rape law reform.

In a new paper, I describe how credibility discounts are meted out at every stage of the criminal process: by police officers, prosecutors, jurors and judges, along with those who form judgments about rape allegations from outside the system. Discounting is especially likely in cases involving women of color, immigrants, LGBTQ individuals, women in poverty and sex workers. Three misconceptions are recurring: a rape accuser is vengeful and therefore lying; or she is regretful about consensual sexual activity and therefore lying; or she is too intoxicated to assess whether she consented, and therefore lying.

To be clear, the widespread occurrence of credibility discounting does not mean that every rape allegation is true. The problem, rather, is a profound disconnect between perceptions of falsity and actual falsity. In particular, police and prosecutors tend to share a set of background assumptions about women who allege rape. These assumptions lead many law enforcement officers to disregard truthful allegations, not simply because rape and its impact on victims are misunderstood, but also because the incidence of false reporting is substantially overestimated.

For instance, in one survey of nearly 900 police officers, more than half stated that ten to fifty percent of sexual assault complainants lie, while another ten percent of respondents asserted that the incidence of false reports is 51 to 100 percent. Another study found that, according to more than half of the detectives interviewed, 40 to 80 percent of sexual assault complaints are false.

This incredulous stance is unwarranted. Research on false rape allegations varies quite a lot in terms of its methodological rigor, but those studies that require a reasonably sound basis to believe that an allegation is false before classifying it as such find false reporting rates between 4.5 and 6.8%—significantly lower than those provided by law enforcement officers when asked to give their estimates. Moreover, research suggests that the types of cases most likely to be considered false—namely, those involving non-strangers and those involving intoxication—are in fact least likely to be false.

In sum, although false reports of rape are uncommon, law enforcement officers often default to doubt when women allege sexual assault, effectively short-circuiting the criminal process. Although properly investigated cases can lead to the discovery of corroborative evidence—eliminating the need simply to pit “her” word against “his”—the opportunity to gather available such corroboration is lost when police officers reflexively disregard rape accusations. Credibility discounting at the early stages of the criminal process thus results in truncated police investigations and premature case closures.

Credibility discounting also helps to explain the vast underreporting problem. A rape victim’s unwillingness to make a complaint to law enforcement (or, in the university setting, to college administrators) frequently stems from a sense that, from the get-go, she is unlikely to be believed. Despite having lacked a name for this phenomenon, survivors of sexual assault widely discern the ubiquity of credibility discounting and opt to keep their credibility from ever being judged. Because of underreporting—along with the very low odds of arrest and prosecution—an estimated nine out of ten rapists go unpunished.

All the while, survivors of sexual violence face a kind of discrimination that has, until now, gone unnoticed. This must change: we have laws that prohibit discrimination and a constitutional right to equal protection. To give meaning to these guarantees, credibility discounting should count as actionable discrimination. As history has shown, the law can transform social practices that undermine gender equality. But first, these practices must be called by name.


Deborah Tuerkheimer is a professor at Northwestern University Pritzker School of Law and the author of Credible: Why We Doubt Accusers and Protect Abusers. She teaches and writes in the areas of criminal law, evidence and feminist legal theory.