74 Pages Posted: 21 Feb 2017 Last revised: 26 Apr 2017
Date Written: February 16, 2017
As epitomized by the iconic “he said/she said” contest, credibility is central to the legal treatment of sexual violence. Over time, the resolution of competing factual accounts has manifested a deeply skeptical orientation toward rape accusers. This incredulous stance remains firmly lodged, having migrated from formal legal rules to informal practices, with much the same result — an enduring system of disbelief. Introducing the concept of “credibility discounting” helps to explain a notable feature — perhaps even the dominant feature — of our legal response to rape. Although false reports of rape are uncommon, law enforcement officers tend to default to doubt when women allege sexual assault, resulting in curtailed investigations along with infrequent arrests and prosecutions. Credibility discounts, which are meted out at every stage of the criminal process, involve downgrades both to trustworthiness (corresponding to testimonial injustice) and to plausibility (corresponding to hermeneutical injustice). By conceptualizing prejudiced disbelief as a distinct failure of justice, one deserving of separate consideration, we may begin to grasp the full implications of credibility discounting, beyond faulty criminal justice outcomes. Attending to this failure of epistemic justice on its own terms advances a conversation about how best to reform institutions so that credibility judgments do not perpetuate inequality. To this end, credibility discounting should count as actionable discrimination. Under certain conditions, moreover, this recognition raises constitutional concerns. When rape victims confront a law enforcement regime predisposed to dismiss their complaints, they are effectively denied the protective resources of the state.
Keywords: Rape, Sexual Violence, Policing, Epistemic Injustice, Feminist Epistemology, Discrimination, Equal Protection
JEL Classification: K10, K30
Suggested Citation: Suggested Citation
Tuerkheimer, Deborah, Incredible Women: Sexual Violence and the Credibility Discount (February 16, 2017). University of Pennsylvania Law Review, Forthcoming; Northwestern Public Law Research Paper No. 17-05. Available at SSRN: https://ssrn.com/abstract=2919865