On September 21, the sixth annual Abraham Lincoln Lecture on Constitutional Law was held at Northwestern Pritzker School of Law, featuring Eric Foner, DeWitt Clinton Professor Emeritus of History ...
In her new book, Credible: Why We Doubt Accusers and Protect Abusers (Harper Wave), Deborah Tuerkheimer, Class of 1940 Research Professor of Law, looks at the spotlight created by #MeToo and considers the next steps: Why do we believe who we believe, and how can we create a path forward for victims of sexual misconduct? She talks to the Northwestern Law Reporter about her findings.
Before we dive into your book itself, let’s first discuss the cultural climate around issues of sexual violence. You have been producing scholarship on the topic of sexual harassment and sexual assault since long before #MeToo. How has that movement, which was founded by activist Tarana Burke in 2006 but started making headlines in 2017, affected your work?
It’s been really interesting to watch the #MeToo movement unfold. I’ve been thinking about this issue—first as a prosecutor in the New York County’s District Attorney’s Office, and then as a scholar—for many, many years. But after the Harvey Weinstein story broke, sexual violence became a topic of real concern to people who never before had it on their radars, so that widespread public reckoning was very real, and, for me, very exciting. At the same time, I was struck by how limited the #MeToo conversation was. Yes, it became easier for people to come forward and say “me too,” but it was apparent that we, as a society, didn’t really know how to hear those stories, or what to do with them. So while the influx of testimonials represented progress, it also revealed the limits of our individual and collective responses to those stories. As a result, the reckoning, to me, seemed woefully incomplete.
You say the #MeToo conversation was “limited.” Can you expand on what you mean by that?
Well, it was limited in a few really important ways. First, there’s the question of which stories come to the fore, and it’s clear that it’s easier for our society to take notice when Hollywood actresses, who are famous and relatively powerful and often very beautiful, come forward and say something happened. Those are the stories that tend to galvanize people and make their way onto the front page. Yet, as we know, there are so many marginalized women whose experiences go unnoticed, and that remains true today, even a few years into this latest iteration of the #MeToo movement.
The conversation was also limited in the sense that it relied on the stories of many accusers. When one woman comes forward, we’re sort of at a loss. It’s only when women come forward en masse to accuse a single individual that people feel some resolve around the ‘what happened?’ question. And then there’s the question of what to do with what happened. In Credible, I make the argument that it’s not just about believing that the abuse took place, but it’s also about believing that the abuse matters, such that we’re going to do something about it. I think that’s the part people often still get stuck on.
The question of belief, and society’s tendency to doubt accusers, is at the core of Credible, which digs into our understanding of credibility and who we believe and why. You write specifically about what you call the “credibility discount.” Can you explain what you mean by that phrase?
I think of the credibility discount as unwarranted dismissal of someone based not on evidence or fact or an accurate understanding of the world, but rather on biases and misconceptions and faulty assumptions. When it comes to sexual violence, that credibility discount breaks unevenly on the backs of women, particularly women who are marginalized and vulnerable. I write a lot in the book about Black women, about Native women and other women of color, and also poor women. I view credibility as a form of power. Powerful people are more likely to be credited, but credibility also confers additional power. Credibility discounting—and, on the flip side, credibility inflation—is entirely bound up in structural hierarchies and power imbalances, and it also exacerbates the inequalities that gave rise to it.
In the book, I talk about credibility discounting in the context of sexual misconduct allegations, but I believe it expands into so many different areas. We can see it if we think about people who tend to lack power and status in our society, and how they routinely have their credibility discounted. You see it when Black women seek medical care and they’re told their symptoms aren’t real. You see it when people, particularly women, try to negotiate in a business setting and they’re dismissed for various reasons. Or, at a meeting, when a woman’s contributions are minimized. Once you have a name for it, you start to see credibility discounting everywhere. Women often experience these moments as “gendered” without realizing why or connecting them to credibility, so this is an area where I think there’s a lot of important work to be done.
Credible shares the stories of many sexual misconduct survivors. How did you gather these stories? What was the research process like?
Writing this book was different from writing law review articles because I knew I wanted stories to drive the book, so I needed to speak to survivors who were willing to talk about the abuse, but even more so the aftermath. I wanted to understand their decision making around whether to come forward or not, and also understand what happened if they did come forward. Some of the (mostly) women I spoke to had an account reported in the news that led me to them, but while the reported story addressed the abuse it very rarely touched on the aftermath, which is what I was asking about. I also spent many hours talking to practicing lawyers and other kinds of experts—psychologists, sociologists, historians. Many of the women I spoke to aren’t depicted in the book by name, but their accounts very much informed my thinking and my writing, as did so many conversations I’ve had over the years, going all the way back to my days as a prosecutor.
Obviously every person’s story and experience is different, but did you discover any commonalities or overarching themes among the accounts you collected?
One really important theme I found is that the aftermath of abuse is often as bad or worse than the abuse itself. This was true even in cases of horribly violent sexual assault, and it was certainly true in accounts of pervasive workplace sexual harassment. The experience of coming forward and being distrusted or blamed or disregarded was more deeply wounding than the incident of abuse. I think that’s a really important point I try to get across in the book, because it impacts anyone who’s in a position to respond to an allegation, whether that person is acting in an official capacity—as a Title IX officer or a police officer—or in an informal capacity, like a friend or coworker. What we do when someone trusts us with an allegation matters so much.
Let’s discuss the role of the law. How do our laws currently serve, or perhaps more accurately, not serve, survivors?
One of the major points I try to demonstrate in this book is that credibility discounting is baked into the law. So for example, I focus on legal definitions of sexual assault and sexual harassment, and on the process of pretrial discovery that lends itself to a kind of “blaming” response. But the law works in tandem with culture. The forces that drive the credibility complex are cultural and they’re legal and they’re very much bound up in one another. It’s not possible to establish a clean separation between the two.
What meaningful changes would you like to see made to the law? What are the next steps?
Well, there are archaic doctrines in criminal law that remain in place in many states, and I would like to see those dislodged. There are continuing “force” requirements in many states, which means that rather than defining sexual assault as intercourse or penetration in the absence of consent, there’s an additional requirement that abundant physical force be used to accomplish that non-consensual intercourse or penetration. That seems, to many people, including me, to be really outdated and in tension with contemporary norms around sex. It’s certainly in tension with what we see on college campuses, for instance, and how people are understanding what is okay and what is not okay. But that understanding isn’t reflected in all of our criminal laws, so that’s one place where you could imagine law reform efforts continuing.
There are also distinctions in marital relationships when it comes to prosecuting sexual assault. There’s no longer a marital rape exemption but in many states, still, certain kinds of marital rape are treated differently and less seriously than they would be if the parties were not married. Intoxication is another area—if the victim voluntarily became intoxicated, some of the blame is essentially put on her, and it is not treated as seriously. Criminal law has lots of archaic, in my view, doctrines that could be reformed, and that would get at some of these baked-in credibility discounting mechanisms.
Sexual harassment definitions as well, I think, are problematic and ripe for reexamining. Some that immediately come to mind are the requirement that harassment be “severe and pervasive” before it can be redressed in court. For many people, the idea that you don’t have actionable harassment until it rises to such an extreme level is troubling. There’s a presumption that harassment is welcome and it falls on the plaintiff to prove “unwelcomeness,” and that’s a longstanding doctrine that comes from the Supreme Court. That’s another place where you could imagine some reform efforts.
What are the next steps in terms of enacting any of those changes? How do we forge a path forward to ensuring fair, equitable treatment of individuals affected by sexual misconduct?
I put forward some very concrete ideas in the book for what could be done. When it comes to criminal law, we have such a decentralized system that it’s going to require state-by-state reform. There are things that can happen at the state level regarding sexual harassment law as well. We’ve seen a little bit of that, particularly in states like New York and California, which have done some really good work around protecting vulnerable groups like interns. And there are some states that have lowered the standard for what counts as harassment and eliminated the “severe or pervasive” requirement, so it’s doable. We have models. Nothing that I suggest is without precedent.
What are your goals for this book? Is it about raising awareness? Enacting change? Both?
My hope is that this book takes many of the ideas I’ve put forward in legal journals and makes them accessible to people who are working in the field, or who may be able to do grassroots advocacy around law reform, or who, in their everyday lives, are responding to allegations in one way or the other. I’m conscious of the fact that, in order to bring more cases into formal systems—which is something that I think ought to happen—we cannot continue to perpetuate a culture of disbelief, blame and disregard. That initial disclosure to a friend, family member or coworker will often dictate the course of the allegation. To me, cultural change and legal change go hand in hand. This is a book that aspires to speak to both of those dimensions of transformation.
Ajay K. Mehrotra, professor of law, has been elected as a new member of the American Law Institute (ALI), the leading independent U.S. organization producing scholarly work to clarify, modernize ...