Credible: Why We Doubt Accusers and Protect Abusers | Crooked Media
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October 24, 2022
Strict Scrutiny
Credible: Why We Doubt Accusers and Protect Abusers

In This Episode

Kate talks with Deborah Tuerkheimer about her recent book, Credible: Why We Doubt Accusers and Protect Abusers. A former prosecutor and leading authority on sexual violence, Deb’s book examines why we are primed to disbelieve allegations of sexual abuse–and how we can transform a culture and a legal system structured to dismiss accusers.

This episode contains discussions of sexual violence. Please use discretion and take care of yourselves.

 

TRANSCRIPT

 

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when a argued, man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Kate Shaw Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I am your lone host today, Kate Shaw. But fear not, it is not just me. Instead, I am joined on this episode by the great Deborah Turkheimer, who’s a professor of criminal justice and feminist legal theory at the Northwestern Pritzker School of Law, where she is a critically important scholar and voice on sexual violence. Before she entered academia, she served as an assistant district attorney in the New York County District Attorney’s Office, where she worked on domestic violence prosecutions. And today, we’re going to talk about Deb’s excellent new book, Credible: Why We Doubt Accusers and Protect Abusers, which was published in late 2021. So welcome to the podcast, Professor Deborah Turkheimer.

 

Deborah Turkheimer Thank you so much. I am happy to be here talking with you.

 

Kate Shaw The book that you have written, Credible, provides a comprehensive overview of how law and culture view sexual misconduct allegations. Specifically, when we’re talking about male abusers and female accusers and you argue that kind of the key to unlocking a lot of our deeply warped, even pathological responses to sexual misconduct and sexual violence. And again, that’s both legal and cultural responses really lies in the idea of credibility. Right, who we deem credible and what repercussions that has. And conversations about sexual violence and how our culture and law respond to them are incredibly important right now. This month is the fifth anniversary of many people’s first exposure to me to its enormous viral moment came five years ago in October of 2017. Although we should say that the term was coined by the activist Tarana Burke nearly a decade earlier, but it’s, you know, five years into the term, really became a household one for many people. You know, and it was also earlier this year that we saw the viral defamation trial involving Amber Heard and Johnny Depp, which was entirely about sexual violence and credibility and which five years on serve, to my mind, as a really important indicator of where we are right now. So we’ll talk about all of that. But before we do, maybe what motivated you to start writing this particular book?

 

Deborah Turkheimer Well, I’ve been thinking about credibility for a very long time. I was a prosecutor in the Manhattan DA’s office, as you mentioned. And credibility is essential to most cases, but particularly the kinds of cases I focused on, the special victims kinds of cases involving domestic violence and child abuse and and sexual violence. But I think that as a scholar, my writing about law reform was constantly bumping up against questions of enforcement, which in turn kind of brought me back over and over again to this question of who do we deem to be credible and who do actors in our criminal justice system, in our Title nine systems, in H.R.? Who do those folks deem to be credible? And of course, the answer to that question is going to dictate what those formal responses look like. So I think that’s sort of what what brought me in. And then I ended up thinking a lot about informal responses to allegations of abuse as well, because in the course of doing the research for the book, it became very clear that for the most part, accusers are turning to the trusted inner circle before they ever even think about coming forward to these more formal institutions. And so that first initial disclosure and its response turns out to be pivotal.

 

Kate Shaw And how credibility is doled out. Right. It’s not just about formal legal responses, but obviously has layers and layers, many of which you uncover over the course of the book. You write about not just credibility, but what you term the credibility complex and you started to get into it. But could you just define this term for our listeners? And then could you also talk about the meaning and importance of a framework that you use and return to throughout the book, which is sort of deceptively simple, but I think really powerful, which is this happened, it was wrong, it matters.

 

Deborah Turkheimer Absolutely. The credibility complex is my name for the cluster of forces, often unseen forces that warp our judgments about credibility. And I mainly look at culture and law as the primary forces that are doing this work, even to those of us who are well-intentioned and have, you know, every desire to respond fairly. We’re steeped in this culture and our laws are shaping us. And the effort I make in the book is to uncover these forces that I call the credibility complex. And it turns out that the ways that our judgments are warped are not idiosyncratic, they’re not random. Far from it. They’re patterned. They’re predictable. And they’re very much entrenched in systems of power that I think are familiar to anyone who’s who’s given thought to these structures of inequality in the hierarchies that really pervade our society. So I first want to kind of set up credibility as a form of power that’s meted out along these axes of power. And then I want to look at how law and culture really prime us to discount the credibility of accusers and to inflate the credibility of those accused. Of course, I’m making a general statement. I’m talking about these patterns. There are always exceptions, and I think it’s really important to state that upfront. I’m not making a categorical statement about every allegation of abuse or our response to it, but rather I’m looking at the ways in which we tend as a society, as a culture, and certainly as a legal system to respond. And then I think what I would add before getting to what credibility really is, is that the more marginalized the accuser, the greater the credibility discount. And the discount looks very different depending upon who’s making the allegations. So not only does gender matter, but race matters. Immigration status matters to socioeconomic status matters and gender identity and sexual orientation and all the way down the line. And on the flip side, when I mentioned credibility inflation, it’s those individuals, typically men who occupy positions of particular status, authority, prestige in our society who are most likely to benefit from the the greatest credibility boosts that the most extreme credibility inflation. So although gender features prominently in my book, I want to think about all of these other kinds of hierarchies. And I think this is a good point to also point out that while I focus on female accusers, I want to make very clear that men and boys and non-binary people can, of course, be victimized by sexual abuse. So you asked me as well to talk about what I have in mind when I think of credibility, when it comes to an allegation of abuse. We often focus on the what happened part of the claim. So when someone comes forward and says that, you know, that this is something that happened to me, there’s that initial factual question of did it actually occur? Did the sexual assault occur or did the sexual harassment occur? But there’s more to a claim than that. And the second and third dimensions I try to draw out in the book, those are it was wrong, meaning the perpetrator was to blame and it matters. It’s something that we ought to care about, that we ought to be concerned about. And what I try to show is that if any of those claims is dismissed, the entire allegation falls. There’s no action. There’s no uptake. There’s no consequence. And so these are functional equivalence. They’re different ways of dismissing an allegation of abuse.

 

Kate Shaw And it’s really powerful the way you show credibility operating at each of these junctures. Right. So much of the time, people’s just the factual allegations that victims bring forward are disbelieved. But even if they’re believed, you still have several other hurdles to clear before, you know, getting some measure of whatever justice means. We can maybe talk about that later in the conversation. But okay, maybe you’re believed, but the seriousness is dismissed, right? You know, that happened, but it was consensual or, you know, it happened, but it maybe wasn’t consensual, but it wasn’t even that big a deal. Right. So there are all of these points, even if an accuser does even decide to bring her story forward in some way. And I will say her, because most, as you said of the stories you tell are of female victims. But of course, victims come in many different varieties. There is no guarantee that it will be a successful airing of what has occurred. And maybe you could say a little bit more, Deborah, about the myth of the perfect victim and sort of the myth of the violent and predatory stranger rapist. Right. Which these myths operate very effectively to reduce the chances that any story that deviates on either end or in any respect from that kind of idealized version of a sexual assault or harassment encounter. So what are those myths and tropes and what impact do they have on our responses to allegations of sexual misconduct?

 

Deborah Turkheimer Well, the credibility complex really rests on this paradigm of stranger sexual assault and the notion that the way sexual assault looks involves a stranger often. With a weapon causing physical injury and a lot flows from that. And I should say that again, many of us, maybe even most of us on some level recognize that that is not how most sexual assault happens and that that certainly isn’t how most sexual harassment happens. And yet this paradigm really does maintain a hold on our popular imagination, on our individual psyches, and very much so on our law. And so what this stranger rape paradigm does is give rise to a perfect victim archetype and a monster abuser archetype. And I’ll say a little bit about about each of those the perfect victim. And you can think about a perfect victim in relation to stranger rape. The perfect victim certainly wasn’t spending time with her perpetrator before the incident. She wasn’t, for instance, out with him. She wasn’t drinking with him. She was dressed appropriately. She certainly has a race. Right. The perfect victim is is white. And she. Fights really hard during the assault. She resists to the utmost. She does everything she can to fight off her assailant. And then afterwards, she reports immediately. This is something that leads her to go right away to law enforcement. And she is able to remember the assault with specificity. And she recalls it in a linear fashion. And, you know, she, of course, maintains no further contact with the person who did this to her. And so in all sorts of ways, that’s kind of how this gets teed up. And when victims fall short of that in any kind of a way, when an accuser comes forward and she deviates from this archetype that is held against her, it’s held against her, and how we tend to think about whether it happened, whether he is to blame or whether she is, and whether this is something that matters, whether this injury is something that ought to lead us to to do something to to make a change, to impact the status quo. So that’s on the on the victims side and the abuser side, because we, again, have this attachment to the stranger rape paradigm, we tend to think of someone who would perpetrate a sexual assault as someone who’s really deviant, not a person who is a coworker, a friend, a family member, not someone who lives in our midst, but someone who is instantly recognizable as as as an other. And of course, it turns out that, you know, that that really isn’t the way that most people who perpetrate sexual assault. Look, there are those exceptions. But as a general rule, and we see this, I think increasingly in the MeToo era, sexual assault is is all too ordinary. And the people who perpetrate it often have good qualities, and they certainly have people who can vouch for them in other contexts. And so this notion of the monster abuser really impedes our ability to see accurately and to sort of understand that when someone who’s accused doesn’t look like a monster, he still may well have have done something very bad.

 

Kate Shaw It really is powerful the way you show that. And you do say, you know, this is a complex in which we are all residing, no matter how well intentioned. It’s like the myth of the fish, right? Who’s asked by the other fish? Like, How’s the water in the fish is like, well, what’s water? Right? Like we are all operating within this framework. And the book really, I think, effectively exposes that.

 

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Kate Shaw Something that you said about resisted to the utmost. Right. The perfect victim physically resisted this attack by a stranger is, I think, a good segway to a couple of questions I wanted to ask about law and history, and in particular, the kind of history of rape prosecutions that you walk through at a couple of different points in the book history and current status, right. In terms of the types of legal standards that victims historically have been required to satisfy in order to successfully make out a rape case and the degree to which some of that kind of endures and is projected forward in our law. So there’s a lot there. And, you know, you talk about it at a bunch of different points in the book. So whatever examples you want to draw on would be really useful. But just the history of and sort of how much of that is still present in our hard law, not even culture, but in our law today.

 

Deborah Turkheimer Sure. I mean, as you as you say, I, I tried to show in the book that this credibility discount is baked into our laws and we can hold the law up as a mirror that reveals cultural blindspots that are sometimes difficult to pin down. So we’re talking about resistance. I think that’s that’s one place we can we can jump in. A century ago, what the resistance requirement looked like in criminal law was an insistence that a victim resist to the utmost or that she offer earnest resistance. And when I when I see that this was a requirement, what I mean is that the case would not be legally sufficient without a showing on the part of the victim that she did enough to fight back and she physically fought hard. Absent that, the case could not be prosecuted, certainly could never reach its its way to a trier of fact. And so over time you see this resistance requirement in law softening, but it endures. And, you know, you see in the 1980s, you see many cases where convictions are overturned by appellate courts and the courts aren’t seeing enough fight on the part of the victim to sustain the conviction. So, you know, even in a case I tell the story of a woman named Cassandra Weeks, she got into the car of an acquaintance and he drove to a secluded area and he threatened to shoot her with a gun. He slapped her multiple times and he had intercourse with her. He penetrated her. And the question for the appellate court was, could this conviction be sustained or did it need to be reversed because she didn’t physically fight him and the conviction was, in fact, reversed? The court said that being afraid of this gun that the man had said was under the seat wasn’t enough and being slapped wasn’t enough, that she just there was no excuse for her not to fight back. And I think that that really epitomizes the laws focus on the behavior of the victim. That, of course, translates into a cultural focus as well and a fixation on whether the victim did enough. In most states, the resistance requirement has now been abolished and it remains in a in a few. But I do think that tracing that lineage and being able to see it in our recent history is really a helpful way of understanding why our culture continues to really be, as I say, fixated on the behavior of victims. And, you know, we might we might talk about verbal resistance as kind of the modernized resistance requirement that we see in most states today. So we can think about consent and the affirmative consent laws that are generally the rule on college campuses. That is very much not the case in the criminal law. The criminal law continues to place the onus for the most part on the victim to say no, to express her non consent. So what is the legal meaning of passivity? It’s for the most part consent. And you’ve got to do something. You’ve got to resist in order to show otherwise.

 

Kate Shaw And in addition to that resistance, whether physical or more commonly today verbal resistance requirement, but also the prompt complaint requirement, unique corroboration requirements that you talk about, cautionary instructions, historically given, basically urging fact finders to proceed with caution before accepting the accounts of accusers, alcohol right requirements or prohibitions on a successful rape conviction in a case in which voluntary as opposed to involuntary intoxication is involved. So it occurred to me as I was reading the book, there are just you know, we have obviously I separately identified rape and sexual assault as crimes under the common law and in statutory law, and yet erected these really high hurdles to actually achieving conviction. And in ways it made me think about fuko in the late 1970s made the very taboo and really controversial claim that we should just treat sexual assault like any other violent attack. Right. Punching someone in the face is no different from raping them. Right. Was the claim that he made. And, you know, it was incredibly controversial and correctly so. But it does really land, I think reading this book, just the singling out of Rape for Special Punishment was accompanied with the imposition of a number of unique burdens that the victims of other kinds of crimes just are never required to encounter.

 

Deborah Turkheimer Yeah, I think it’s hard to kind of escape the notion that this is so bound up in male sexual entitlement and that we’re sort of seeing that play itself out in all of these, as you say, unique procedural requirements and these legal definitions that really puts a whole lot of sexual violence in that lawful category. And that’s true, as you say, with regard to voluntary intoxication. It’s true there are still marital rape distinctions. Even today, marital rape was once not a crime at all. It now is in all of the states, and yet we still treated differently. And, you know, we could do the same thing with regard to sexual harassment law and the ways in which it puts unique obligations on victims. And it trivializes certain kinds of injuries and it shifts the blame and puts the onus on the victim. So, I mean, this really is endemic to our law.

 

Kate Shaw Yeah, because we are a Supreme Court podcast primarily. I was wondering if you could also maybe talk for a little bit about the accusations by and, you know, kind of the differential treatment of Christine Blasey Ford, who our listeners will, of course, remember, accused Brett Kavanaugh of a sexual assault that she said occurred when they were both teenagers. And then obviously, you know, longer ago, Anita Hill, who testified that Clarence Thomas sexually harassed her when she worked for him in the government. So if you want to talk about either of those two episodes and maybe what it means to have two men on the Supreme Court who have been credibly accused of sexual misconduct.

 

Deborah Turkheimer Yeah, these these stories both feature prominently in in the book. And I, you know, I think for a good reason. They’re very much on my mind and I think on the minds of many. We recently witnessed this treatment of Christine Blasey Ford, which was different from the treatment of Anita Hill in many ways, and also depressingly familiar. Right. In terms of at least the outcome. When it came to Anita Hill, she was dismissed in ways that were extraordinarily disrespectful. The things that were said about her included that she was a little nutty and a little slutty. She had this disorder. She was an erotic maniac. And I think that was not surprising to many people, particularly given that this was a black woman who had come forward. But it was horrible to watch. And I think that it it did reshape in many ways the ways that the nation thinks about sexual harassment. When Christine Blasey Ford came forward, the treatment in a hearing context, I think, was much more respectful and the angle was different. It wasn’t that she was lying, which, of course, is what was said about Anita Hill, but rather that she was mistaken, that she was just getting it wrong. And that is actually something that we see quite frequently. One of the kind of caricatures of accusers who ought not to be trusted is this sort of confused person who isn’t maliciously constructing a falsehood different from the gold digger or the regretful woman or the the woman who is out for revenge. But even so, her word ought not to be trusted because she really is confused. And there was such a misunderstanding, I think, of the effects of trauma that her memory and her recall were held to an impossible standard. And so in the end, of course, we know that she was not deemed to be credible or at least not credible enough to upset the trajectory of the person who I think was seen by many to really be entitled to this position on the court. And I guess that’s the other thing I would say about the the Ford hearings. I, you know, read the account. I wasn’t there. But Dahlia Lithwick, you know, wrote about it and beautiful to tell and described, you know, everyone in the room believing her that there was just really no question. And I think for many people watching that that that that seems right and yet when Brett Kavanaugh got up and gave his version of events, so to speak, there was something. That shifted. And I think that that’s where we sort of need to think about credibility discounting, but also credibility inflation and at least consider the possibility that the issue wasn’t that Christine Blasey Ford wasn’t believed, but that what she was alleging wasn’t important enough to change the course that seemed inevitable, that it wasn’t enough to sort of disrupt this path to the highest court in the land.

 

Kate Shaw Yeah, that’s so well-put. So maybe the country or the committee at least believed that had happened, but either that it wasn’t wrong or wrong enough or that it didn’t matter to use your framework. I think that’s seems right. And I also think that in trying to take stock of the kind of impact of the Blasey Ford testimony and Kavanaugh’s obvious eventual confirmation, it’s actually important to take into account how that episode has been treated in the subsequent confirmations. Right? Like you think about how much the unfair victimization of Brett Kavanaugh was a present narrative in Ketanji Brown Jackson confirmation hearings, which had nothing to do with Brett Kavanaugh and Ted Cruz. And Lindsey Graham returned again and again to how wronged Kavanaugh had been and how that wrong somehow justified their refusal to support someone they obviously had to concede was incredibly qualified for the Supreme Court. And in Graham’s case, where he had previously supported, I think, both Justice Kagan and Justice Sotomayor on the logic that elections have consequences. And they were obviously objectively qualified. And yet somehow the experience of Kavanaugh having been accused by a woman who testified in unbelievably credible terms, I wasn’t in the room either, but I obviously watched the hearings and she was totally believable. And I do think that in real time, most people who watched it, including by all accounts Trump and his team in the White House, felt the same way, and yet it didn’t alter the trajectory. So I do think that it is there such different lessons in certain ways, but there are so many depressing parallels all of these decades later in terms of the some of the places where there were holes poked in gaps in her recollection of all this event that occurred so many years ago. That is a theme that recurs throughout the book, which is the laws failure to be sufficiently attuned to or sensitive to how survivors actually behave during and after assaults. Right. This is kind of implicit in our exchange about the kind of utmost resistance standard. But there are people who have something like out-of-body experiences and don’t physically resist because they are essentially paralyzed during the course of an attack. And yet the law doesn’t account for that. And so here’s a general question how can the law be more sensitive to the intricacies of trauma, including but not limited to the way memory operates and traumatic events?

 

Deborah Turkheimer Yeah, I mean, I think you can sort of think about law enforcement officers and trauma informed interviewing, trauma informed investigation. It starts there, at least if you’re talking about the criminal justice system. And then I think you can pull it through all the way to prosecutors and prosecutor training around trauma. And then you would you would think and hope that the juries are going to get some education around trauma as well. And, you know, one of the interesting developments we’ve seen recently is sort of the the use of expert testimony to really help jurors better understand, better contextualize some of the behaviors that may seem counterintuitive, including continuing contact, including a narrative that is something other than linear and complete, because neuroscientists have a lot to say about this. Certainly psychologists have a lot to say about this. And so I think this is about the criminal system and, you know, in other contexts, other systems as well, incorporating some of the best understandings that social scientists and scientists have been able to gather over the past years and decades.

 

Kate Shaw And I know that was an answer that was geared towards what the criminal legal system can do in response. And of course, the book talks quite a bit about sexual harassment and potential civil remedies, but maybe staying focused on the criminal legal system for a moment. I mean, I think this is just so hard because you talk in your book about some really interesting research about there is pretty strong evidence that from the perspective of the social meaning of what happened, it matters that there be some kind of punishment. Right. So you talk about this study that has individuals see either a clip from or be described this, you know, really awful scene from the film The Accused. And, you know, in terms of how seriously participants understand the events, it makes all the difference that there be some punishment versus no punishment. And I wasn’t aware of that research. And what’s so interesting, it really matters that there be some punishment if we’re to take. Seriously these kinds of offenses. And yet I’m sure that we agree that we are savagely, overly punitive as a society. And there are lots of critiques by folks like AI Gruber, my colleague Kate Levine, many, many others that suggest that, you know, feminists overreliant on criminal law and criminal punishment to address problems like domestic violence and rape. And I think that your book squares the circle nicely in talking about alternatives. But can you talk a little bit about how you reconcile these really powerful competing imperatives?

 

Deborah Turkheimer Well, thanks for saying that this was a challenging chapter to write and thinking about, as you say, what makes an allegation matter. And I’m adopting a very survivor centric perspective on the question, and I want to be clear about that. Well, it turns out, you know, survivors have all sorts of different feelings about the question of what would make it matter. And I want to acknowledge that. And I and I think to to honor that by offering kind of a range of options, some of them involving criminal prosecution, possibly incarceration, and others really not the other end of the spectrum. And maybe we can talk about restorative justice in a bit in terms of the the criminal system. The research that you mention is fascinating to me, because it does suggest that that most survivors are looking for punishment not as a way of an acting vengeance, but rather because it expresses some sort of equalizing of of of status that something was taken that can be somewhat replaced by communal condemnation of the of the person who did this. And so, you know, there’s a lot of kind of expressive benefit from punishment that that that really isn’t about, you know, sort of anything that smacks of vindictiveness or the like. And I think that that’s really important for many survivors and many that I spoke to. The amount of of jail time really was not the issue. The conviction itself was very important. I you know, I should also acknowledge that for some survivors, the the amount of of jail time is important. And, again, as a way of reflecting the harm, the importance of the harm. And, you know, I should say it really a way of valuing the victim. And I don’t know that everyone agrees with that, but I think it’s important to put it out there.

 

Kate Shaw One example of this that you talk about in the book involves a young woman named Chanel Miller who was sexually assaulted by a Stanford student, Brock Turner. In that case, there was a criminal prosecution, but Turner was sentenced to only six months in jail, and I think he served maybe three months of that sentence. And it was pretty clear during those proceedings that the sentencing judge was really, really empathetic toward Turner.

 

Deborah Turkheimer Yeah. And so Chanel miller wrote an amazing memoir. It’s called Know My Name. And, you know, she talks a lot about why it was so hurtful and so harmful for the judge to as she perceived it. Take his side. And I think that some of this is about the ways in which our culture and our law orient to the pain of the powerful. I talk about something called the care gap, which is the discrepancy between the concern or care that we tend to exhibit towards those who are more powerful, who occupy positions of authority, or seem to have really promising futures. And then those who don’t, who are more vulnerable, more marginalized, who we are so much more inclined to to disregard and to treat with indifference. And I think that part of what was happening in the Turner case and when it came to Chanel Miller’s experience of the sentence is that that care gap came into really stark relief.

 

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Kate Shaw Since you mentioned a couple of minutes ago thinking about restorative justice. So maybe we could pivot for a minute from talking about, you know, actual criminal justice to ways to approach responding to providing some kind of remedy for victims that doesn’t necessarily make use of the kind of traditional criminal legal procedures. Right. So how might alternative kind of restorative justice frameworks operate?

 

Deborah Turkheimer Sure. And for those who aren’t familiar with these frameworks, I’ll just I’ll say a couple of things about them. They really start with an acknowledgment of responsibility on the part of the offender and go from there. And so apology is often really central to these kinds of processes. And the question of repairing the harm and what it takes to repair the harm is is really sort of the priority. And so this is a process that brings together not only the victim and the offender, but also members of their community, be it friends and family and together in this sort of collaborative setting. The idea is to come up with ways that the victim will be restored to the greatest extent possible, and also that the offender will not repeat the offense, that there will be some sort of, you know, moral education on the part of the offender. And so, you know, that’s that’s sort of what restorative justice is. And I think you can see why it’s appealing to so many survivors. And it connects to the question of credibility because it takes off the table the what happened to question it. And it starts from the proposition that it happened and that it’s blameworthy and then focuses on the how can we make it matter? What does it look like to make it matter? And it involves the victim very centrally in in trying to flesh that out. So I tell the story in the book, for example, of two high school students there named Michael and Sophia. And they went through a restorative justice process that was hugely empowering to Sophia. I really use it to illustrate how this can work well when it works well. This was a very skilled practitioner, and the upshot of the conversations, multiple conversations over a period of time was that Sophia, I think, was able to sort of explain how this was so harmful to her. She felt heard by Michael. Michael very clearly went through sort of a transformation of his own. And then Sophia was able to say what she needed from him, what she wanted from him, not to come back to school for a month to give her some time. She wanted him to go onto social media and explain to everyone who had put messages out there that she was lying, that in fact, she had not been lying, that this had happened. And so, you know, in all sorts of ways, this was something that I think worked really, really well. And so I illustrate the good example. And at the same time, I think I urge some caution because, again, this isn’t for all survivors and it’s not something that all survivors want, and particularly where there’s some distrust between the institution, for example, a high school that’s implementing this kind of process and sort of the survivor community. It’s it may not work well at all. And so I you know, I just I just want to say that I think this is a complicated question and it requires a lot of nuance in the way that we talk about it.

 

Kate Shaw Okay. So maybe let’s zoom out now and I’d like to ask you to assess sort of the last couple of years, right? So I think we are about five years out from this sort of full flowering of the MeToo movement. Right? October of 2017 is when the first New York Times pieces about Harvey Weinstein start breaking, although we should say can’t be said enough that the activist Tarana Burke coined the term MeToo and actually starts the movement much, much earlier. But for many Americans, October 2017 is when this is something we first become aware of as an organized movement. And in the early days of this kind of era of the movement, it seemed as though a lot was changing, right? Like really fast. You have Weinstein after operating as an open, secret abuser that everyone was aware of and nobody could touch for years and years. And yet all of a sudden, he was no longer untouchable. And then, you know, some not like hundreds, but scores, maybe, maybe, maybe just a handful, but men in various positions of power end up losing their jobs. You have, you know, Jeffrey Epstein, who for years had also basically carried on an open secret of having a network of underage girls he sexually abused, had gotten a slap on the wrist in Florida in 2008. But, you know, all of a sudden was facing the prospect of more serious criminal penalties when he died by suicide in a New York jail. So it seemed as though momentum was growing. And then we are now recording right in the summer of 2022. And so maybe. We could come back to the credibility complex and the Amber Heard and Johnny Depp defamation trial, which just wrapped. So maybe before we get to the trial itself. I’ll ask sort of maybe you just to reflect on the trajectory of the last five years and that we can talk a little bit more about that trial.

 

Deborah Turkheimer Sure. I think the conviction of our Kelly was another really good example on the list that you mentioned of, you know, men who had for a very, very long time been accused, but only very quietly and only in sort of whisper networks, some some louder than others, and then finally face some accountability, formal accountability. So it’s important to say that the credibility complex is most powerful when it works to keep allegations from ever surfacing. And I you know, I see the hashtag MeToo explosion as as being a real push against that complex and a way to potentially at least change the calculus so that coming forward would not inevitably entail the kind of backlash and the failure of accountability that I think most I think it’s fair to say most victims assume will be in place. And so we saw this proliferation of high profile cases, but also the hashtag that went viral. And I think conversations were changing. And I think that this was sort of top of mind for a much longer time than most people would have anticipated. And yet the formal systems that are in place to mete out accountability. Really didn’t change very much. There are some exceptions. There were some states that did some interesting things, particularly on the sexual harassment side. There was some statute of limitations reform. But I think as a rule, the structures stayed in place and the ways that we think about credibility didn’t really change much, which is part of the impetus for writing the book was to say it’s all well and good for these stories to come forward, but what are we going to do with them? What are we actually going to do in our daily lives and what are we going to do in terms of the systems that are in place to actually translate these allegations into some kind of consequence? And I think Amber Heard and Johnny Depp coming. Up in the summer of 2022 is a stark reminder that this credibility complex is is still an incredibly potent force and that we have not in any way sort of transcended these biases and cultural blind spots around allegations of abuse, particularly when they are leveled against a powerful man who in this case had lots of fans. And I think we saw outside the courtroom a lot of the myths that you and I have been talking about today kick into high, high gear. And, you know, even within the courtroom, of course, Amber Heard suffered a big loss. And I think that, you know, one way to explain that, although it’s not the only way is to say that against some of these biases and these myths really came to the fore.

 

Kate Shaw Yeah. No, I mean and it just it really felt like a perfect illustration of so much of what was in the book, the credibility discount that, you know, because any holes that could be poked in the stories that heard told on the stand. And I will say I followed the trial only sort of through the secondary literature. I didn’t watch it in real time, although many, many people did. And then even more powerful was this credibility boost that you just saw, that the fact that this is this, you know, rich, white, powerful, accomplished actor, received from the culture broadly. And, I mean, I don’t know at some point I think that people will hopefully spend some time trying to unpack what exactly happened to result in what felt like a really quite intentional, coordinated social media campaign. Maybe it was, but I felt like every time I fired up like Instagram, I was getting served content from like friends of Johnny Depp, and I don’t follow him or her or very many actors or actresses at all. It was just wild. How inescapable. Both the fact of the trial happening was, but also the kind of strong narrative that he was to be believed that he was the wronged party. And it was just like, well, the jury agreed, but it’s not as though they were operating independent of all of these forces. Right. They’re swimming in the same water. But it was like the most dishearteningly perfect distillation of much of what was in your book.

 

Deborah Turkheimer I would agree it was hard to watch even from afar. And I think that the, you know, media coverage ended up balancing out a bit. But it took some time to sort of correct for the overwhelming narrative, which is that this was a lying woman whose emotionality on the stand kind of proved the point and the ways in which, you know, Tik-Tok then came into the breach to slice and dice her testimony so that it could be even more apparent that she was not to be trusted. It was, I think, painful, frankly, for for many survivors, too, of domestic violence and sexual violence. And the fear, of course, is that this kind of not only verdict but cultural protection around Johnny Depp ends up chilling. The kinds of allegations that, as we talked about a few minutes ago, this October 2017 really unleashed.

 

Kate Shaw And what do you think about where the pendulum stops right now? So if MeToo, if the embrace of coming forward was a really powerful force five years ago, what kind of effect does this have? Are you worried about survivors being chilled in coming forward and making these kinds of accusations?

 

Deborah Turkheimer Yeah. I mean, I think that two issues come up. One is the threat of a defamation suit, which has always been something that I’ve worried about. And this is certainly not the first time that you’ve seen someone go to court and sue for defamation. When it comes to reporting through unofficial channels. This is something that I think accusers have to take into account, even if in the end they’re victorious because truth is a defense. And so maybe, you know, you’ll prevail in the end. But the psychic cost and the financial cost of litigating one of these suits is enormous. And so it’s it’s it’s of concern. It should be on people’s minds. And then, of course, there’s the cultural response and the ways in which Amber Heard was demonized and vilified. And, you know, as she put it in The Washington Post op ed, that really kicked us all off. She suffered the culture wrath. And I think we saw that in real time. And that’s something that absolutely other individuals were thinking about coming forward, I think on some level are taking into account.

 

Kate Shaw Yeah, I mean, in some ways, the outcome of the trial was like the perfect confirmation of everything that she said in the op ed. That sort of set it all in motion.

 

Deborah Turkheimer Yeah. Yeah.

 

Kate Shaw Can we talk a little bit about prevention? Because I feel like to the extent there are sort of action items that we can try to identify, I feel like that would be a good place to go now.

 

Deborah Turkheimer Yeah. I talk in the book about ways that each one of us in our daily lives can do better to judge credibility more fairly. So, discarding some of these myths that are detailed in the book. Thinking about the kinds of scenarios that are most likely to trigger blame and to sort of be on guard for those, and then to think about the care gap and shrinking that, think about who ought to receive our concern and our our care. And then from the perspective of law, all of these places where the credibility discount is baked in are places where I think we ought to be thinking about reform. And so there’s sort of a roadmap for legal reform. I think when we really pull back and focus on the prevention question, we want to see sexual abuse on a continuum. That’s not to say that we’re going to collapse all of it and say that it’s all the same because we’re not. But there is this lurking issue of entitlement that I think plays itself out in lots of different ways. And so there’s a lot of really good stuff that’s being written now about ethical sex and consent being a ceiling, but not a flaw. Christine and Bill has a really good book out along these lines. And so thinking about how we behave toward one another in workplaces, thinking about all sorts of equity questions as being wrapped up in what we’re talking about, thinking about pay equity. And I have to say, you know, thinking about abortion and reproductive justice and thinking about all of this as being of a piece, not all the same, but of a piece. And if we want to start to prevent sexual assault, we can do it in ways that are very focused. And I think we’ve talked about some of those ways. They’re really important. And I think that it’s critical that we do all of this. But I also want to make a pitch for sort of putting this into some broader context and thinking in a really expansive way about, you know, what gender equality means.

 

Kate Shaw Deborah Turkheimer, thank you so much for being here. The book is Credible. It provides an incredibly useful framework that helps make visible some of these deep undercurrents in law and culture. Order it wherever you get your books, Deb, thanks so much for taking the time to talk to us today.

 

Deborah Turkheimer Thank you so much, Kate.

 

Kate Shaw Before we go, a big reminder, do not let Election Day sneak up on you this year. There’s a lot on your ballot and you don’t want to get caught off guard. Vote Save America is here to help you figure out the who, what, when and where a voting. Use their tool to learn about every position, candidate and ballot measure you are voting on and build your own ballot to use as a handy voting cheat sheet. Next, you can find your times, places and options for voting and make a plan all in one place. November 8th, election day is your last chance to vote. Head to Vote Save America dot com to make sure you are ballot ready. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth.