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 ARTICLE

DISCOUNTING WOMEN: DOUBTING DOMESTIC

VIOLENCE SURVIVORS' CREDIBILITY AND
DISMISSING THEIR EXPERIENCES

DEBORAH EPSTEINt & LISA A. GOODMANtt

In recent months, we've seen an unprecedented wave of testimonials about the

serious harms women all too frequently endure. The #MeToo moment, the
#WhylStayed campaign, and the Larry Nassarsentencing hearings have raisedpublic
awareness not only about workplace harassment, domestic violence, and sexual abuse,
but also about how routinely women survivorsface a Gaslight-stylegauntlet of doubt,
disbelief and outright dismissal of their stories. This pattern is particularlydisturbing
in the justice system, where women face a legal twilight zone: laws meant to protect
them and deterfurther abuse oftenfail to achieve theirpurpose, because women telling
stories of abuse by their male partnersare simply not believed. To fully grasp the nature
of this new moment in genderedpower relations-andto cement the significant gains
won by these public campaigns-weneed to take afull, considered look at when, how,
and why thejustice system and otherkey social institutionsdiscount women's credibility.
We use the lens of intimate partner violence to examine the ways in which
women's credibilityis discounted in a range of legal and social service system settings.
First,judges and others improperly discount as implausible women's stories of abuse,

t Professor and Co-Director of the Domestic Violence Clinic, Georgetown University Law Center.
tt Professor, Department of Counseling, Developmental, and Educational Psychology, Lynch
School of Education, Boston College. We are indebted to Kiel Brennan-Marquez, Deborah Brake,
Ronit Barkai, Andrew Budzinski, Rachel Camp, Gillian Chadwick, Elizabeth Clendenen, Courtney
Colgan, Courtney Cross, Valerie Druckenmiller, Nora Dwyer, Carolin Guentert, Courtney Gray,
Shameka Gregory, Ellen Gutowski, Margaret Johnson, Julie Kahn-Schaye, Jasmine Khalfani, Ayesha
Khan, Laurie Kohn, Tammy Kuennen, Chris Lehmann, Margo Lindauer, Ester Serra Luque, Mithra
Merryman, Jane Stoever, Robin West, and Ellen Wilbur for their insightful contribution and comments
on earlier drafts of this Article. We would like to thank Helen Hailes, Briana Hauser, Andrea Muto,
and Lauren Ruvo for their valuable research assistance. We dedicate this article to our daughters, Rachel
and Zanny, whose courageous refusal to internalize the unjust credibility discounts and dismissals they
have encountered inspired our efforts to move this conversation forward.

(399)
400 University of Pennsylvania Law Review [Vol. 167: 399

based on a failure to understand both the symptoms arisingfrom neurological and

psychological trauma, and the practical constraints on survivors' lives. Second,
gatekeepers unjustly discount women's personal trustworthiness, based on both
inaccurate interpretations of survivors' courtroom demeanor and negative cultural
stereotypes about women and their motivationsfor seeking assistance. Moreover, even
when a woman manages to overcome all the initialmodes of institutionalskepticism
that minimize her account of abuse, she often finds that the systems designed tofurnish
her with help and protection dismiss the importance of her experiences. Instead, all
too often, the arbiters ofjustice and social welfare adopt and enforce legal and social
policies and practices with little regardfor how they perpetuatepatterns of abuse.
Two distinct harms arisefrom this pervasive pattern of credibility discounting and
experiential dismissal. First, the discrediting of survivors constitutes its own psychic
injury-an institutionalbetrayal that echoes the psychological abuse women suffer at the
hands of individualperpetrators. Second, the pronounced, nearly instinctivepenchantfor
devaluing women's testimony is so deeply embedded within survivors' experience that it
becomes a potent, independent obstacle to their efforts to obtain safety andjustice.
The reflexive discounting of women's stories ofdomestic violencefinds analogs among
the kindred diminutions and dismissals that harm so many other women who resist the
abusive exercise of male power, from survivors of workplace harassment to victims of
sexual assault on and off campus. Forthese women, too, credibility discounts both deepen
the harm they experience and create yet another impediment to healing and justice.
Concrete, systematic reforms are needed to eradicate these unjust, gender-based
credibility discounts and experientialdismissals, and to enable women subjected to male
abuses of power at long last to trust the responsiveness of thejustice system.

INTRODUCTION .............................................................................. 401

I. TYPES OF GATEKEEPER-IMPOSED CREDIBILITY DISCOUNTS ... 405
A. Story Plausibility........................................................................ 406
1. Internal C onsistency .......................................................... 406
a. Neurological Trauma: Traumatic Brain Injury .................. 407
b. Psychological Trauma: Post-TraumaticStress Disorder......... 410
2. External Consistency .......................................................... 412
a. Wom en Who Stay ........................................................... 413
b. Physical Versus Psychological Harm ................................... 416
B. Storyteller Trustworthiness........................................................... 420
1. D emeanor...........................................................................421
2. M otive .......................................................................... 425
a. The Grasping Woman on the Make .................................. 426
b. The Woman Seeking UnfairAdvantage in a Child
Custody Dispute ............................................................. 431
3. Social L ocation .................................................................. 432
2019] Discounting Women 401

II. GATEKEEPER-IMPOSED EXPERIENTIAL DISCOUNTS ................ 438

A. CriminalJustice System ............................................................... 439
B. Subsidized Housing and Public Shelters ......................................... 442
III. THE IMPACT OF CREDIBILITY DISCOUNTS ON WOMEN
SURVIVORS .............................................................................. 446
A. PsychologicalHarms and InstitutionalGaslighting .......................... 447
B. Harms Related to Access to Justice and Safety .................................. 451
IV. MOVING FORWARD: INITIAL STEPS TOWARD ERADICATING
CREDIBILITY DISCOUNTS IN THE JUSTICE SYSTEM .................. 453
CONCLUSION---------------------------------................................................ 459

INTRODUCTION

We are at something of a feminist watershed moment in our society. For

months, women have been coming forward in large numbers to share their
stories about sexual harassment and assault in the workplace; stories of events
that occurred over the course of decades, stories that survivors kept private
until now.1 It is both painful and exhilarating.
But as we hear this slow drip of horror stories, many of us struggle with the
acute awareness that we've been here before. Back in 1991, during the Anita
Hill-Clarence Thomas hearings,2 the whole country confronted the ugly
dynamic of sexual harassment-most particularly, how men use their power in
the workplace hierarchy to subordinate women. (Some of us still have our "I
believe Anita" buttons.) And yet here we are today, more than twenty-five years
later, experiencing a similar sense of abrupt revelation and shock.
How can we still be surprised by these stories? It's not that workplace
assault took a hiatus in the intervening quarter century. There were women
all around us, women reading this essay right now, who continued to be
sexually harassed. Women seeking legal protection from this kind of
discriminatory abuse filed hundreds of thousands of complaints of sexual
harassment and assault with the Equal Employment Opportunity

1 See, e.g., Stephanie Zacharek, Eliana Dockterman & Haley Sweetland Edwards, Time Person
of the Year 2017: The Silence Breakers, TIME, Dec. 18, 2017; Anna Codrea-Rado, #MeToo Floods Social
Media With Stories of Harassmentand Assault, N.Y. TIMES (Oct. 16, 2017), https://www.nytimes.com/
2017/10/16/technology/metoo-twitter-facebook.html?_r=o.
2 When she was in her mid-twenties, Anita Hill worked for Clarence Thomas at the Equal
Employment Opportunity Commission. When President George H.W. Bush nominated Thomas
to replace Justice Thurgood Marshall on the U.S. Supreme Court, Hill testified that Thomas had
subjected her to sexual harassment on the job. Millions watched the televised broadcast of the
confirmation hearings, as members of the Senate Judiciary Committee, all male and all white,
questioned Hill. Ultimately, Thomas was confirmed, with a vote of 52-48. See, e.g., JANE MAYER
&

JILL ABRAMSON, STRANGE JUSTICE: THE SELLING OF CLARENCE THOMAS (1994).

402 University of Pennsylvania Law Review [Vol. 167: 399

Commission during that time.3 But the broader culture stopped listening,
relapsing into a long-standing tendency to trivialize women's experiences of
abuse at the hands of powerful, predatory men.
Today's stories pouring out of Hollywood, Congress, and the media are
just one facet of this long-simmering public scandal. After experiencing an
initial victimization, many women also face a societal gauntlet of doubt,
dismissal, or outright disbelief.
As more and more women stepped forward in all spheres of life to offer
new testimonials to the #MeToo movement, we began to wonder about how
this credibility discounting phenomenon plays out in the context of intimate
partner violence4-another category of abuse that women primarily suffer at
the hands of men.
The parallels are dramatic. Story after story demonstrates how, despite a
substantial increase in public awareness of the problem, accompanied by
improvements stemming from four decades of activism, scholarship, and
training, women survivors of domestic violence face a persistent skepticism
regarding both their accounts of abuse and their recitations of harm. Women
find their credibility discounted5 by the partners who abuse them, by the larger
society in which they live, and by the gatekeepers of the justice and social
service systems to which they turn for help.6 This skepticism and suspicion
compound the pre-existing, myriad harms inflicted via domestic abuse itself.
And, perhaps even more important, the pronounced, nearly instinctive
penchant for devaluing women's testimony is so deeply embedded within
women's experience that it constitutes its own distinct obstacle to their ability
to obtain safety and justice. Philosopher Alison Bailey captures, in part, the
harm to which we refer: "Imagine living in an epistemic twilight zone, a world

3 See, e.g., Danielle Paquette, NotJust Harvey Weinstein: The Depressing Truth About Sexual Harassment
in America, WASH. POST (Oct. 12, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/10/12/not-
just-harvey-weinstein-the-depressing-truth-about-sexual-harassment-in-america/?utmterm=.5eb78df70a9.
4 We use the terms intimate partner violence and domestic violence interchangeably throughout
this Article to describe a wide range of abuse-psychological, physical, sexual, or economic-
inflicted by a partner or former partner.
5 The term "credibility discount," used frequently in this essay, was originally coined by
Deborah Tuerkheimer, in a thoughtful analysis of women's experiences of sexual assault. Deborah
Tuerkheimer, Incredible Women: Sexual Violence and the Credibility Discount, 166 U. PA. L. REV. 1, 3
(2017). We use the same term here in part to advance a dialogue about the universality of credibility
discounting across contexts where women attempt to resist male abuses of power.
6 This essay focuses on the credibility of straight women survivors in particular. We recognize, of
course, that other survivor groups experience serious challenges in terms of achieving credibility. Male
survivors, both in heterosexual and same-sex intimate relationships, are often dismissed or even ridiculed.
Genderqueer survivors also face major credibility challenges. Our main objective here is to bring to light
the persistent and particularized story of our cultural refusal to credit women as women, and especially
those who have experienced relationship abuse at the hands of men. We also address the ways in which
women's intersecting identities, on dimensions such as race, class, and sexual orientation, profoundly
affect the likelihood that they will be discredited, as well as their experience of discrediting.
2019] Discounting Women 403

where many of your lived experiences are regularly misunderstood, distorted,

dismissed, erased, or simply rejected as unbelievable."7 But even this capacious
understanding fails to capture the full dimensions of the problem. Women also
face a legal twilight zone; laws meant to protect them, compensate them, and
deter further abuse often fail in application, because women telling stories of
abuse by their male partners are simply not believed.
This experience-the reflexive discounting of women's stories of domestic
violence-offers a useful vantage point into the kindred diminutions and
dismissals that harm so many other women who resist the abusive exercise of
male power, from survivors of workplace harassment to victims of sexual assault
on and off campus.8 For all of these women, credibility discounts both deepen
the harm they experience and create yet another obstacle to healing and justice.
This Article critically examines how the justice system and other key
institutions of our society systematically discount the credibility of women
survivors of domestic violence. Our analysis is based on a wide range of legal,
psychological, philosophical, and cultural sources, including the more than
twenty-five years of experience each of us has had, individually and in
collaboration, representing survivors in civil protection order cases,
conducting empirical research with survivors of intimate abuse, and
consulting with local and national domestic violence organizations.9
A central focus here is on the civil justice system, with particular attention
paid to women's efforts to secure safety and a measure of redress in the form
of civil protection orders-the legal remedy most commonly utilized by

7 Alison Bailey, The Unlevel Knowing Field: An Engagement with Dotson's Third-OrderEpistemic
Oppression, 3 SOC. EPISTEMOLOGY REV. & REPLY COLLECTIVE 62, 62 (2014).
8 See infra text accompanying notes 244-219.
9 Author Deborah Epstein has represented or closely supervised the representation of over 750
petitioners in civil protection order cases in D.C. Superior Court. She served as Co-Chair of the effort
to create and implement the D.C. Superior Court's integrated Domestic Violence Unit, Co-Director
of the D.C. Superior Court's Domestic Violence Intake Center, and Chair of the D.C. Domestic
Violence Fatality Review Commission. She is the author of the D.C. Superior Court's Domestic Violence
Benchbook, has trained hundreds of police officers, worked in close collaboration with prosecutors on
intimate partner violence cases, and written numerous articles addressing domestic violence issues. She
has been a member of the D.C. Mayor's Commission on Violence Against Women, and the National
Football League Players' Association Domestic Violence Commission, and has served on the Board of
Directors of the D.C. Coalition Against Domestic Violence and the House of Ruth. Author Lisa
Goodman has published over one hundred peer-reviewed articles based on her extensive research on
the experience of intimate partner survivors as they move through systems designed to help them,
including social service and justice systems. She has also supervised scores of domestic violence
advocates working in a residential setting; conducted numerous evaluations of domestic violence
programs; led workshops on trauma-informed approaches to domestic violence services, survivor-
defined approaches to advocacy, and evaluating domestic violence programs; and consulted to the
National Domestic Violence Resource Center, The National Domestic Violence Hotline, Futures
Without Violence, The Full Frame Initiative, and The Second Step.
404 University of Pennsylvania Law Review [Vol. 167: 399

domestic violence survivors.10 Because the civil justice system offers no right
to counsel, only those who can afford an attorney, or find a pro bono lawyer,
are represented. These cases are quite different than those in the criminal
courts, where the prosecution commands the investigative resources of the
police and wields the full power of the state to subpoena corroborative
evidence and compel witnesses to testify. In contrast, in approximately eighty
percent of civil protection order and related family law cases," neither the
survivor nor the accused perpetrator has a lawyer, discovery is limited,12 and
virtually no one has the resources to retain a private investigator. 13 As a result,
few survivors have access to potentially powerful corroborative evidence.
Moreover, they lack the benefit of legal advice about what types of more easily
available evidence would be useful to bring to court.14
These forces all but guarantee that most civil protection order cases end up in
the "he said/she said," or "word on word" realm. It's the survivor's testimony
against that of her intimate partner. This testimonial structure places enormous
pressure on individual credibility. In the end, most protection order cases boil

10 Caroline Vaile Wright & Dawn M. Johnson, EncouragingLegal Help Seeking for Victims of Intimate
PartnerViolence: The TherapeuticEffects of the Civil Protection Order, 25 J. TRAUMATIC STRESS 675, 675 (2012).
11 See, e.g., Amy Barasch, Justicefor Victims ofDomestic Violence: One Thing They Really Need Is Lawyers,
SLATE (Feb. 19, 2015, 9:30 AM), http://www.slate.com/articles/newsand_ politics/jurisprudence/2015/02/
domestic-violence protection victims need civil courts and lawyers.html ("[Eighty] percent of
people in our civil courts do not have a lawyer ... "); see also LEGAL SERVS. CORP., THE JUSTICE
GAP: MEASURING THE UNMET CIVIL LEGAL NEEDS OF Low-INCOME AMERICANs 52 (2017),
https://www.lse.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf [https://perma.cc/KZL3-
RGUD] ("Low-income survivors of recent domestic violence or sexual assault received inadequate
or no professional legal help for 86% of their civil legal problems in 2017."); STATE OF MD. ADMIN.
OFFICE OF THE COURTS, DOMESTIC VIOLENCE MONTHLY SUMMARY REPORTING (2017),
http://jportal.mdcourts.gov/dv/DVCRStatewide_2017_1.pdf [https://perma.cc/ 4 HCC-APE6]
(demonstrating that, in Maryland, 82.5% of petitioners were pro se in protective order cases during
2017) Beverly Balos, Domestic Violence Matters: The Case for Appointed Counsel in Protective Order
Proceedings,15 TEMP. POL. & CIV. RIGHTS L. REV. 557, 567 (2006) (noting that in Illinois, neither
party was represented in 83.4% of protective order cases).
12 In a recent survey of chiefjudges in courts across the United States, thirty-three percent reported
that pro se litigants faced challenges related to discovery issues that were sufficiently problematic that
they could affect the case in most or all cases. DONNA STIENSTRA ET AL., FED. JUDICIAL CTR.,
ASSISTANCE TO PRO SE LITIGANTS IN U.S. DISTRICT COURTS: A REPORT ON SURVEYS OF CLERKS
OF COURT AND CHIEF JUDGES 21-23 (2011), https://www.fjc.gov/content/assistance-pro-se-litigants-
us-district-courts-report-surveys-clerks-court-and-chief-judge-1 [https://perma.cc/3WWE-N6RG].
13 Many survivors of domestic violence, and thus many petitioners in protection order cases,
are low income. See infra text accompanying note 141.
14 A survivor may have access to some corroborative evidence, typically in the form of voice mails,
photographs, texts, and social media posts. In many cases, however, a survivor no longer has access to
such evidence; particularly in the absence of legal advice, she may have deleted the relevant files, either
inadvertently or because they were too upsetting to retain. And because these cases are scheduled as
emergency litigation, they typically move from filing to trial in two to three weeks-insufficient time
to subpoena useful evidence in the absence of focused legal advice, even in jurisdictions providing
nonlawyers with subpoena power.
2019 ] Discounting Women 405

down to this: if a survivor is believed, the judge will award her protection. If she
is not believed, the judge will deny it. This fact-the central importance of a
survivor's credibility in the protection order and broader civil justice system-led
us to focus on that system as a core area of inquiry.
We examine credibility discounting from a variety of perspectives. In Part
I, we analyze the two essential ways in which justice and social service system
gatekeepers discount the credibility of women survivors seeking safety. First,
judges and others improperly discount as implausible women's stories of abuse, due
to a failure to understand the symptoms arising from neurological and
psychological trauma as well as the practical realities of survivors' lives. Second,
gatekeepers unjustly discount women's personal trustworthiness,based on inaccurate
interpretations of survivors' courtroom demeanor, as well as negative cultural
stereotypes about women and their motivations for seeking assistance.
In Part II, we explore how these credibility discounts are reinforced by
the broader context of legal and social service systems that are willing to
tolerate the harmful impact of laws, policies, and practices on survivors. Even
when a woman makes it through the credibility discount gauntlet, she often
finds that the systems to which she turns for help dismiss her experiences and
trivialize the importance of her harms, adopting and enforcing policies with little
or no regard for the ways in which they operate to her detriment.
In Part III, we examine the harms inflicted by this combination of discounting
women's credibility and dismissing women's experiences. First, these harms can
be measured as an additional psychic injury to survivors, an institutional betrayal
that echoes the psychological abuse imposed by individual perpetrators. Second,
the pervasive nature of these harms creates a distinct obstacle to survivors' ability
to access justice and safety, in addition to the many, more concrete stumbling
blocks with which domestic violence victims are all too familiar.
Finally, in Part IV, we offer suggestions for initial efforts to eradicate these
unjust, gender-based credibility discounts and experiential dismissals.
Adopting these reforms would allow women subjected to male abuses of
power to trust the responsiveness of the justice system and our larger society.

I. TYPES OF GATEKEEPER-IMPOSED CREDIBILITY DISCOUNTS

Women survivors of abuse inflicted by their intimate partners encounter

doubt, skepticism, or disbelief in their efforts to obtain justice and safety from
judges and other system gatekeepers.15 First, their stories of abuse appear less
plausible than other stories told in the justice system. We tend to believe stories

15 The most complete exploration of credibility-based obstacles to date can be found in the
brief but insightful essay by Lynn Hecht Schafran, Credibility in the Courts: Why Is There a Gender
Gap?, JUDGES' J., Winter 1995, at 42.
406 University of Pennsylvania Law Review [Vol. 167: 399

that are internally consistent-they have a linear thread and are emotionally and
logically coherent. But domestic violence often results in neurological and
psychological trauma, both of which can affect a survivor's comprehension and
memory. The result is a story that, to the untrained ear, sounds internally
inconsistent and therefore implausible. In addition, we tend to believe stories
that are externally consistent-that fit in with how we believe the world works.
But many aspects of the domestic violence experience are foreign, and therefore
incomprehensible, to most nonsurvivors. The result is a story that appears on its
surface to lack external consistency, and therefore-again-to be less plausible.
Second, our assessments of women's personal trustworthiness suffer from
skepticism rooted in perceptions of survivors' apparent "inappropriate"
demeanor, prejudicial stereotypes regarding women's false motives, and the long-
standing cultural tendency to disbelieve women simply because they are women.

A. Story Plausibility

Narrative theorists and cognitive scientists agree that human beings are
hard-wired to organize facts into "meaningful patterns."16 This "need for
narrative form is so strong that we don't really believe something is true
unless we can see it as a story."17 And storytelling is central to the justice
system as well;18 it is the primary method judges and juries use to assess the
reliability of facts presented at trial. Accordingly, any time a survivor needs
to go through a gatekeeper to access resources or justice or safety, she has to
tell some sort of story about her domestic violence experience. And if she is
to succeed, her story must be a plausible one. So what makes a story plausible?

1. Internal Consistency

First, we believe stories that are internally consistent. That is, we grant
credibility to stories that make logical and emotional sense, have a continuous,

16 CAROLYN GROSE & MARGARET E. JOHNSON, LAWYERS, CLIENTS & NARRATIVE: A

FRAMEWORK FOR LAW STUDENTS AND PRACTITIONERS 15-t6 (2017); see also DAVID CHAVKIN,
CLINICAL LEGAL EDUCATION: A TEXTBOOK FOR LAW SCHOOL CLINICAL PROGRAMS 93-94
(2002); LISA CRON, WIRED FOR STORY: THE WRITER'S GUIDE TO USING BRAIN SCIENCE TO
HOOK READERS FROM THE VERY FIRST SENTENCE 185-199 (2012); Kay Young & Jeffrey Saver,
The Neurology of Narrative, SUBSTANCE, Mar. 2001, at 74.
17 H. PORTER ABBOTT, THE CAMBRIDGE INTRODUCTION TO NARRATIVE 44 (2d ed.
2008). "For anyone who has read to a child or taken a child to the movies and watched her rapt
attention, it is hard to believe that the appetite for narrative is something we learn rather than
something that is built into us through our genes." Id. at 3.
18 "[T]he law is awash in storytelling." ANTHONY G. AMSTERDAM & JEROME BRUNER,
MINDING THE LAW It0 (2000).
2019] Discounting Women 407

linear thread, form a coherent whole, and contain no significant, unexplained

gaps in time or action. 19
But for many domestic violence survivors, telling the truthful story of
their abusive experience involves a narrative that is more impressionistic than
linear, and that appears somewhat illogical or emotionally off-kilter. The
tension between our desire for internal consistency and the realities of
survivor stories can be explained in part by some of the neurological and
psychological consequences of domestic violence itself, such as traumatic
brain injury and posttraumatic stress disorder.

a. Neurological Trauma: Traumatic Brain Injury

Traumatic Brain Injury (TBI) can result from either blunt-force trauma
to the head (for example, being hit by an object, having your head smashed
against something, or being violently shaken), or from reduced oxygen to the
brain (for example, through strangulation).20 Blows to the head can cause
cranial bleeding or damage cranial blood vessels and nerves. A lack of oxygen
can result in the decreased function or death of brain cells.21
In domestic violence cases, both blunt force trauma and strangulation are
relatively common. One study of women in three New York domestic violence

19 GROSE & JOHNSON, supra note 16, at 16. These correlations apply in the courtroom as well;
research demonstrates strong correlations between courtroom credibility determinations and the
internal consistency of stories. Numerous studies reveal a strong belief that inconsistencies indicate
inaccuracies, and this perception guides juror decisionmaking. See, e.g., Garrett L. Berman, Douglas J.
Narby & Brian L. Cutler, Effects of Inconsistent Eyewitness Statements on Mock-Jurors' Evaluations of the
Eyewitness, Perceptionsof Defendant Culpability, and Verdicts, 19 LAw & HUM. BEHAV. 79 (1995); Garrett
L. Berman & Brian L. Cutler, Effects of Inconsistencies in Eyewitness Testimony on Mock-Juror Decision
Making, 81 J. APPLIED PSYCHOL. 170 (1996); Neil Brewer et al., Beliefs and Data on the Relationship
Between Consistency and Accuracy of Eyewitness Testimony, 13 APPLIED COGNITIVE PSYCHOL. 297
(1999); Neil Brewer & R.M. Hupfeld, Effects of Testimonial Inconsistencies and Witness Group Identity on
Mock-JurorJudgments,34J.APPLIED SOC. PSYCHOL. 493 (2004); Sarah L. Desmarais, Examining Report
Content and Social Categorization to Understand Consistency Effects on Credibility,33 LAw & HUM. BEHAV.
470 (2009); Rob Potter & Neil Brewer, Perceptions of Witness Behaviour-Accuracy Relationships Held by
Police, Lawyers andMock Jurors,6 PSYCHIATRY, PSYCHOL. & L. 97, 101 (1999). The centrality of internal
consistency in courtroom credibility determinations is reflected in treatises advising litigators about
how to attack and undermine the credibility of a witness for the opposing side. See, e.g., PAUL
BERGMAN, TRIAL ADVOCACY IN A NUTSHELL 58 (5 th ed. 2013).
20 OR. DEP'T OF JUSTICE, TRAUMATIC BRAIN INJURY AND DOMESTIC VIOLENCE,
http://www.doj.state.or.us/wp-content/uploads/2o17/o8/traumaticbraininjuryanddomesticviolence.pdf
[https://perma.cc/ 7 ZVD-XBWJ] (last visited Jan. 23, 2018); PARTNERS FOR PEACE, Understanding
Traumatic Brain Injury, Concussion and Strangulation in Domestic Violence (Oct. 1t, 2016),
http://www.partnersforpeaceme.org/understanding-traumatic-brain-injury-concussion-strangulation-
domestic-violence/ [https://perma.cc/D7CX-V9F9].
21 NAT'L INST. OF NEUROLOGICAL DISORDERS & STROKE, Traumatic Brain Injury: Hope
Through Research: How Does TBI Affect the Brain, https://www.ninds.nih.gov/Disorders/Patient-
Caregiver-Education/Hope-Through-Research/Traumatic-Brain-Injury-Hope-Through#32 18_2
[https://perma.cc/C8HD-SBEL] (last modified June 28, 2017).
4o8 University of Pennsylvania Law Review [Vol. 167: 399

shelters found that ninety-two percent of the women questioned had been hit
in the head by their partners more than once; eighty-three percent had been
hit in the head and shaken severely; and eight percent had been hit in the head
over twenty times in the preceding year. 22 Forty percent of these women lost
consciousness as a result of at least one of the assaults they endured.23 In
another study, emergency room data indicated that sixty-seven percent of
women treated for intimate partner violence-related injuries reported
problems consistent with a diagnosis of head injury.24
Even mild TBI-which can occur after only a short period without oxygen
to the brain-can result in a significant and profound impact on memory and
behavior, inducing symptoms such as confusion, poor recall, inability to link
parts of the story together or to articulate a logical sequence of events,
uncertainty about detail, and even recanting of stories (i.e., renouncing them
as untrue after accurately reporting them to friends, family, police, or even
judges).25 In many ways, this is hardly surprising; people with an impaired
sense of the consistency of their own experience are unlikely to produce
consistent narratives of that experience on demand.
Because research demonstrating the frequency of TBI in the domestic
violence context is relatively new, however, few justice system gatekeepers are
aware of its potential neurological effects.26 Even in hospital emergency
rooms, where medical professionals now routinely perform TBI screens when

22 Helene Jackson, Elizabeth Philp, Ronald L. Nuttall & Leonard Diller, Traumatic Brain
Injury: A Hidden Consequence for Battered Women, 33 PROF. PSYCHOL.: RES. & PRAC. 39, 41, 42
(2002) (showing that correlations between frequency of being hit in the head and severity of
cognitive symptoms were statistically significant).
23 Id. at 41.
24 John D. Corrigan et al., Early Identification of Mild TraumaticBrain Injury in Female Victims
of Domestic Violence, AM. J. OBSTETRICS & GYNECOLOGY, May 2003, at S 7 1, S 74 . Yet another
sampled women from both shelter and non-shelter populations who all had sustained at least one
physically abusive encounter and found nearly seventy-five percent of the entire sample reported a
domestic violence-related TBI. Eve M. Valera & Howard Berenbaum, Brain Injury in Battered
Women, 71 J. CONSULTING & CLINICAL PSYCHOL. 797, 799 (2003).
25 Valera & Berenbaum, supra note 24, at 801; Eve Valera, IncreasingOur Understandingof an
Overlooked Public Health Epidemic: Traumatic Brain Injuries in Women Subjected to Intimate Partner
Violence, 2 7 J. WOMEN'S HEALTH 735, 735 (2018) ("[T]he greater the number and more recent ...
the TBIs, the more poorly women tended to perform on measures of memory, learning, and
cognitive flexibility, and the higher . .. the levels [of PTSD symptoms]."); see also Gwen Hunnicut,
Kristine Lundgren, Christine Murray & Loreen Olson, The Intersection of Intimate Partner Violence
and Traumatic Brain Injury: A Callfor InterdisciplinaryResearch, 32 J. FAM. VIOLENCE 471, 474 (2017);
Maria E. Garay-Serratos, A Secret Epidemic: Traumatic Brain Injury Among Domestic Violence Victims,
L.A. TIMES (Oct. 12, 2015), http://beta.latimes.com/opinion/op-ed/la-oe-1o12-garayserratos-tbi-
domestic-abuse-20151012-story.html; Rachel Louise Snyder, No Visible Bruises: Domestic Violence and
Traumatic Brain Injury, NEW YORKER (Dec. 30, 2015), https://www.newyorker.com/news/news-
desk/the-unseen-victims-of-traumatic-brain-inj ury-from-domestic-violence.
26 See Kevin Davis, Brain Trials: Neuroscience Is Taking a Stand in the Courtroom, 98 A.B.A. J. 37,
37-38 (2012).
2019] Discounting Women 409

a patient presents with certain kinds of athletic injuries, partner abuse victims
are rarely screened.27 And because most injuries caused by strangulation are
internal, patients admitted in the absence of such screens are unlikely to be
considered for a TBI diagnosis.28 As a result, survivors themselves are unlikely
to know that they are at risk for TBI, unlikely to get treatment, and unlikely
to know about the possible symptoms they may later experience.29 This creates
a perfect storm of ignorance: a survivor is more likely to tell justice system
gatekeepers a story that lacks internal consistency; the survivor herself is
unlikely to be able to understand or explain this apparent failing; and those
gatekeepers, in turn, are more likely to hear her story as less plausible and,
accordingly, impose an unjust credibility discount on her narrative.
The following true story illustrates the problem.30 Grace Costa3l was
diagnosed with mild TBI, caused when her ex-boyfriend strangled her with a
telephone cord. She's inconsistent when she tries to tell the story: the date
changes; sometimes she remembers the assault taking place in one year; other
times, another. Her memory varies as to which of her adult children were
present. Sometimes she thinks they were about to eat dinner, sometimes that
they were talking about a half-eaten apple on the kitchen floor.
Grace can't tell her story with a linear narrative. She says memories of
the incident come to her in flashes, one image at a time-apple, blood, cord-
but the disparate pieces never fit together as a whole.
Grace's explanation of events is confused. Pieces of her story hang
untethered in her mind. She remembers being inside, then outside; being
down, then up, and maybe down again. The police weren't there, then they
were. Half the time, she says, she doesn't "remember much of anything."

27 See Eve Valera & Aaron Kucyi, Brain Injury in Women ExperiencingIntimate Partner-Violence:
Neural Mechanistic Evidence of an "Invisible" Trauma, i BRAIN IMAGING BEHAV. 1664, 1664 (2017)
("TBI treatments are typically absent and IPV interventions are inadequate."); see also Garay-
Serratos, supra note 25; Gael B. Strack, George E. McClane & Dean Hawley, A Review of 300
Attempted Strangulation Cases PartI: CriminalLegal Issues, 21 J. EMERGENCY MED. 303, 308 (2001).
28 This challenge is illustrated by a study of 30o nonfatal domestic violence strangulation cases,
where researchers found that only fifteen percent of victims had injuries that were sufficiently visible
for police officers to photograph; they further found that even where the injuries were visible, they
were often minimized in police descriptions with terms such as "redness, cuts, scratches, or abrasions
to the neck." Strack et al., supra note 27, at 303, 305-06.
29 See Jacquelyn C. Campbell et al., The Effects of Intimate Partner Violence and Probable Traumatic
Brain Injury on Central Nervous System Symptoms, 27 J. WOMEN'S HEALTH 761, 762 (2018) (noting that
"for many abused women, head injuries occur multiple times, in an escalating pattern, and cognitive or
psychological effects are often viewed within the context of abuse rather than as a specific medical injury"
(i.e., cognitive effects are attributed to mental health conditions resulting from the abuse, rather than a
TBI)); Valera & Kucyi, supra note 27; Valera, supra note 25, at 735 (majority of abuse-related TBI's in
study sample "were considered to be mild TBIs for which medical attention [was] almost never sought").
30 This story relies heavily on the account written by Rachel Louise Snyder, supra note 25.
31 This is not her real name. Id.
410 University of Pennsylvania Law Review [Vol. 167: 399

To a trauma expert, the way Grace tells her story strongly indicates that
she was, indeed, strangled and deprived of brain oxygen that night. The
disjointed, incoherent way she tells her story makes it all the more plausible.32
But the opposite is true when Grace is telling her story to justice system
gatekeepers. To the untrained ear, her story's disjointed, inconsistent nature makes
it sound implausible, and therefore she is likely to incur a credibility discount if she
tells it to the police, deciding whether to make an arrest; to prosecutors, deciding
whether to bring a criminal case; or to a judge, deciding whether to issue a
protection order. The more Grace tries to remain faithful to what she actually
remembers, the more likely she is to be denied assistance and protection.

b. Psychological Trauma: Post-Traumatic Stress Disorder

Psychological trauma can operate similarly to neurological trauma in

undermining the internal consistency of a survivor's story; like TBI, it commonly
produces memory lapses or dissociative states. 33 Research shows that a majority
of survivors meet diagnostic criteria for Post-Traumatic Stress Disorder
(PTSD),34 and many more women exhibit serious symptoms of psychological
trauma, though not enough to reach the threshold of a formal diagnosis. These
symptoms are another common source of internal inconsistency in survivor
accounts provided to police, judges, and other system gatekeepers.
The symptoms that comprise PTSD include avoidance, hyperarousal, and
intrusive destabilizing experiences such as dissociative flashbacks and intense or
prolonged emotional responses to reminders of the original traumatic event. 35
These reminders are commonly known as "triggers."36 For many survivors,
being in a courtroom, in close proximity to an abusive partner-particularly
while being instructed to review his abusive behavior in detail-constitutes a
potent trigger.37 Instead of providing the judge with a clear, logical narrative, a

32 See supra text accompanying notes 20-25.

33 See, e.g., Jonathan E. Sherin & Charles B. Nemeroff, Post-Traumatic Stress Disorder: The
NeurobiologicalImpact of Psychological Trauma, 13 DIALOGUES CLINICAL NEUROSCIENCE 263, 263
(2011) ("Several pathological features found in PTSD patients overlap with features found in
patients with traumatic brain injury ... :.).
34 A meta-analysis of eleven studies investigating the prevalence of PTSD among IPV survivors
demonstrated a weighted mean prevalence of 63.8%. See Jacqueline M. Golding, Intimate PartnerViolence
as a Risk Factorfor Mental Disorders:A Meta7Analysis, 14J. FAM. VIOLENCE 99, n6 (1999); see also Loring
Jones, Margaret Hughes & Ulrike Unterstaller, Post Traumatic Stress Disorder(PTSD) in Victims of Domestic
Violence: A Review of the Research, 2 TRAUMA, VIOLENCE, & ABUSE 99, 100 (2001).
35 AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 271-72 ( 5 th ed. 2013) [hereinafter DSMD].
36 See, e.g., BESSEL VAN DER KOLK, THE BODY KEEPS THE SCORE: BRAIN, MIND, AND
BODY IN THE HEALING OF TRAUMA 182 (2014).
37 NAT'L CTR. ON DOMESTIC VIOLENCE, TRAUMA AND MENTAL HEALTH, PREPARING FOR
COURT PROCEEDINGS WITH SURVIVORS OF DOMESTIC VIOLENCE: TIPS FOR CIVIL LAWYERS
2019] Discounting Women 411

survivor may have flashbacks or feel overwhelmed by emotion. The predictable

result is that she will skip, or forget, certain parts of her story-or, indeed, be
unable to speak key elements of it out loud.38 Again, this disconnected,
inconsistent testimony is in fact evidence of the truth of her narrative; to the
untrained ear, however, it makes her story suspect.
Psychological trauma, or even extreme stress, can affect the memory as well.
As Judith Herman puts it: "Traumatic memories have a number of unusual
qualities. They are not encoded like the ordinary memories of adults in a verbal,
linear narrative that is assimilated into an ongoing life story."39 Instead, these
memories often lack verbal narrative detail and context; they are encoded in the
form of sensations, flashes, and images, often with little or no story.40 And as with
neurological trauma, psychologically traumatic memories encode the physical and
psychic harms that generate them in a way that is prone to create a steep
credibility discount based on the seeming implausibility of a survivor's story.
The tendency to discount survivors' stories based on internal inconsistencies
is not restricted to police and judges alone. Courthouse clerks, for example-
whose essential function is to create and maintain case files-often take on the
role of credibility-assessors and system gatekeepers.41 This happens even though
clerks have no formal authority to determine whether a complaint has merit; such
power is reserved to members of the judiciary, through Article III of the
Constitution. Here is one example, from attorney and law professor Jane Stoever:

I recall waiting in a Domestic Violence Unit clerk's office .. and seeing a clerk
confront an unrepresented abuse survivor about the lack of specific dates in her

AND LEGAL ADVOCATES 1 (2013), http://www.nationalcenterdvtraumamh.org/wp-content/uploads/

2013/03/NCDVTMH-2013-Preparing-for-Court-Proceedings.pdf [https://perma.cc/2UDK-JPRL].
38 Jerrell Dayton King & Donna J. King, A Callfor Limiting Absolute Privilege: How Victims of
Domestic Violence, Suffering with Post-TraumaticStress Disorder, Are Discriminated Against by the US.
Judicial System, 6 DEPAUL J. WOMEN, GENDER & L. 1, 29 (2017) (testifying in court can cause a
survivor to reexperience trauma and dissociate); Joan S. Meier, Notes from the Underground:
IntegratingPsychologicaland Legal Perspectiveson Domestic Violence in Theory and Practice, 21 HOFSTRA
L. REV. 1295, 1313 (1993) (noting that dissociation can make testimony appear "'plastic' or 'fake'
while hyperarousal can make survivors appear overly excitable").
39 JUDITH LEWIS HERMAN, TRAUMA AND RECOVERY: THE AFTERMATH OF
VIOLENCE-FROM DOMESTIC ABUSE TO POLITICAL TERROR 37 (1997).
40 Id. at 38. An inability to recall key features of the trauma is one criterion of the posttraumatic
stress disorder diagnosis. See DSMD, supra note 35, at 271. As Dr. Jim Hopper explains: "Remembering
always involves reconstruction and is never totally complete or perfectly accurate . . . . [G]aps and
inconsistencies are simply how memory works - especially for highly stressful and traumatic experiences
... where the differential encoding and storage of central versus peripheral details is the greatest. Such
gaps and inconsistencies are never, on their own, proof of anyone's credibility, innocence, or guilt." Jim
Hopper, Sexual Assault and Neuroscience: Alarmist Claims Vs. Facts, PSYCHOL. TODAY (Jan. 22, 2018),
https://www.psychologytoday.com/blog/sexual-assault-and-the-brain/2ol80o/sexual-assault-and-neuro
science-alarmist-claims-vs-facts [https://perma.cc/RG6P-EX38].
41 This observation is based on the first author's twenty-seven years of experience representing
survivors in hundreds of civil protection order cases. See supra note 9.
412 University of Pennsylvania Law Review [Vol. 167: 399

petition. The clerk insisted that the litigant had to plead with specificity, which
included identifying specific calendar dates. When the pro se survivor was
unable to remember exact dates for the years of abuse she had endured, the
clerk tore up her petition [and refused to let her file a protection order case].42

2. External Consistency

In addition to crediting stories based on their degree of internal consistency,

we are far more likely to credit stories that are externally consistent-i.e.,
chronicles of abuse that resonate with our pre-existing and publicly sanctioned
narratives about how the world works.43 An example taken from Professors
Carolyn Grose and Margaret Johnson underlines this dynamic:

A narrative that tells of a person entering a home and closing a wet, dripping
umbrella while exclaiming, "I just walked through a fire!" would not fit with
our sense of normal. To be externally consistent, she should have burnt
clothes, not a dripping wet umbrella, or be coughing from the smoke.44

The demand for external credibility, however, is complicated by the

unconscious process of "false consensus bias"-the tendency to see one's "own
behavioral choices and judgments as relatively common and appropriate ... while
viewing alternative responses as uncommon, deviant, or inappropriate."45 In other
words, we tend to assume that our own personal experiences are universal: what
we would likely do, say, and feel is what all others would do, say, and feel.46
In reality, of course, these assumptions are misleading. Passengers who have
survived a serious car crash tend to react quite differently to a driver's sudden
slamming of the brakes than those who have experienced only unremarkable

42 Interview with Jane Stoever, Clinical Professor of Law, Univ. Cal., Irvine Sch. of Law (Jan. 6, 2018).
43 GROSE & JOHNSON, supra note 16, at 15-i6. As with internal consistency, the importance of
external consistency in courtroom credibility determinations is reflected in treatises advising
litigators about how to attack and undermine the credibility of a witness for the opposing side. See,
e.g., BERGMAN, supra note 19, at 62-63.
44 GROSE & JOHNSON, supra note 16, at 16.
45 Lee Ross, David Greene & Pamela House, The "False Consensus Effect: An EgocentricBias in Social
Perceptionand Attribution Processes, 13 J. EXPERIMENTAL SOC. PSYCHOL. 279 (1976); see also Gary Marks
& Norman Miller, Ten Years of Research on the False-ConsensusEffect: An Empirical and Theoretical Review,
102 PSYCHOL. BULL. 72, 72 (1987) (noting that over a ten-year period, "over 45 published papers have
reported data on perceptions of false consensus and assumed similarity between self and others"); Leah
Savion, Clinging to Discredited Beliefs: The Larger Cognitive Story, 9 J. SCHOLARSHIP TEACHING
&

LEARNING 81, 87 (2009) ("People tend to over-rely on instances that confirm their beliefs, and accept with
ease suspicious information"); Lawrence Solan, Terri Rosenblatt & Daniel Osherson, False Consensus Bias
in ContractInterpretation,1o8 COLUM. L. REV. 1268, 1268 (2008).
46 See Marks & Miller, supra note 45; Ross, Greene & House, supra note 45; Solan, Rosenblatt
& Osherson, supra note 45-
2019] Discounting Women 413

car rides.47 Veterans who have spent time in military conflict tend to react quite
differently to loud, unexpected noises than do civilians leading peaceful lives.48
In each of these examples, a profound difference in experience results in
fundamentally different expectations about how the world works. And such
expectations tend, in turn, to provoke diverse behaviors.
The most consequential experiential gap that separates domestic violence
survivors from gatekeepers of the justice system involves, of course, the
behaviors that stem from suffering abuse at the hands of an intimate partner.
Despite decades of activism and research, the experiences of women survivors
fall into what philosopher Miranda Fricker calls a persistent "gap in collective
interpretive resources" that prevents the dominant culture from making sense
of a particular kind of social experience.49 In the intimate abuse context, this
gap prevents most nonsurvivors from being able to make sense of how
survivors might actually behave.

a. Women Who Stay

To see the real-world impact of this interpretive gap, consider a quandary

that has assailed survivors since the early days of the anti-domestic violence
movement. 50 We know that many women stay with their abusive partners in
the aftermath of violent episodes. This tends to occur in the context of
relationships characterized by coercive control, a pattern of domination that

47 See J. Gayle Beck & Scott F. Coffey, Assessment and Treatment of PTSD After a Motor Vehicle
Collision: EmpiricalFindings and Clinical Observations, 38 PROF. PSYCHOL. RES. & PRAC. 629, 629
(2007) (explaining that survivors of motor vehicle accidents are at heightened risk of post-traumatic
stress disorder and may experience intrusive symptoms or avoid driving altogether).
48 See, e.g., Anke Ehlers, Ann Hackmann &Tanja Michael, Intrusive Re-Experiencingin Post-Traumatic
Stress Disorder:Phenomenology, Theory, and Therapy, 12 MEMORY 403, 407 (2004).

[M]any of the trigger stimuli are cues that do not have a strong meaningful
relationship to the traumatic event, but instead are simply cues that were temporally
associated with the event, for example physical cues similar to those present shortly
before or during the trauma (e.g., a pattern of light, a tone of voice); or matching
internal cues (e.g., touch on a certain part of the body, proprioceptive feedback from
one's own movements). People with PTSD are usually unaware of these triggers, so
intrusions appear to come out of the blue.

Id. (emphasis omitted) (citation omitted). For a vivid visual/aural exposition of the triggers veterans
face in daily life, see David Lynch Found., Sounds of Trauma, YOUTUBE (Apr. 11, 2017),
https://www.youtube.com/watch?v=bgpRw92d1MA.
49 MIRANDA FRICKER, EPISTEMIC INJUSTICE: POWER AND THE ETHICS OF KNOWING 1
(2007).
50 See, e.g., Nancy R. Rhodes & Eva Baranoff McKenzie, Why Do Battered Women Stay?: Three
Decades of Research, 3 AGGRESSION AND VIOLENT BEHAV. 391 (1998).
414 University of Pennsylvania Law Review [Vol. 167: 399

includes tactics to isolate, degrade, exploit and control the survivor.5 1 The
perpetrator creates and enforces a set of "rules" governing numerous aspects of
his partner's life-"her finances, clothes, contact with friends and family, even
what position she sleeps in."52 Once a perpetrator of abuse has appropriated
the power to verbally restrict his partner's day-to-day life choices, physical
violence then serves as both the abuser's means of enforcing that control and
the punishment for attempts to resist it.53 Many of us, but perhaps especially
those privileged enough to live lives untouched by violence and with easy access
to supportive resources, respond to stories of women who stay by focusing
obsessively on the question "Why didn't she leave?"54 The question is really
more of an accusation: "In her shoes, I would most definitely have left." Or, in
the words of a judge presiding over a civil protection order case: "[S]ince I
would not let that happen to me, I can't believe that it happened to you."55
In recent years, judges are less likely to make such explicit statements on the
record, but many continue to perceive a woman's decision to stay as externally
inconsistent. 56 Judges tend to express their belief in the connection between
women staying and story plausibility in less formal contexts, such as judicial
training sessions and casual conversations outside of the courtroom.57 And this
failure of understanding affects case outcomes. In 2015, for example, one of the
first author's clinic clients lost her civil protection order suit based on a judge's
discrediting the woman's story. The judge explained that her credibility
determination derived from photographs, introduced by the perpetrator
boyfriend, showing that, not long after a particularly serious violent episode and
just a few days after she obtained a temporary protection order, the woman had

51 Evan Stark, Re-Presenting Battered Women: Coercive Control and the Defense of Liberty
(2012) (unpublished manuscript), http://www.stopvaw.org/uploads/evanstarkarticlefinal_100812.pdf
[https://perma.c/DJK3-LVW 7 ].
52 Deborah Epstein & Kit Gruelle, Should an Abused Wife Be Charged in Her Husband's Crime? N.Y.
TIMES (Mar. 12, 2018), https://www.nytimes.com/2o8/o3/12/opinion/noor-salman-vegas-shooting-trial.html.
53 Scholar Michael Johnson has developed a widely used typology of intimate partner violence,
based on the extent to which coercive control is involved. Relationships that take the form of "intimate
terrorism" are characterized by one partner's use of coercive control to exert power over the other. In
contrast, "situational couple violence" is not embedded within a broader pattern of controlling behaviors.
Survivors who tend to seek help from social services and thejustice systems are more likely to be involved
in relationships of coercive control than are survivors in the general population. See Michael P. Johnson
& Janel M. Leone, The DifferentialEffects of Intimate Terrorism and Situational Couple Violence: Findings
from the National Violence Against Women Survey, 26 J. FAM. ISSUES 322, 323-24, 347 (2005).
54 See infra text accompanying notes 6o-66.
55 Jane C. Murphy, Lawyeringfor Social Change: The Power of the Narrativein Domestic Violence
Law Reform, 21 HOFSTRA L. REV. 1243, 1275 (1993).
56 This observation is based on the first author's twenty-seven years of experience representing
survivors in hundreds of civil protection order cases. See supra note 9.
57 The first author has observed or participated in several such conversations at judicial training
sessions, conferences, and in informal social settings over the last ten years.
2019] Discounting Women 415

gone to a Red Lobster restaurant with him.58 The judge was not interested in
hearing about why the woman had decided to have dinner with her abusive
partner-whether it was because she believed that the best way to ensure her
immediate safety was to comply with her boyfriend's requests, because she was
struggling with the challenges of ending a long-term relationship, or because she
wanted her children to be able to see their father. Instead, the judge simply
concluded that the photographs proved her incredibility.59
This persistent interpretive gap separating survivor and nonsurvivor
understandings of the world was a powerful theme of the recent
#WhyIStayed movement. In the fall of 2014, Baltimore Ravens running back
Ray Rice assaulted his then-fiancee Janay Palmer in an elevator, knocking her
unconscious. The video of the incident, which also showed Rice dragging
Palmer's limp body out of the elevator, was made public.60 Both the media
and the general public focused their attention disproportionately on
variations of the victim-blaming question, "Why didn't she leave?" Far more
ink was spilled discussing whether Janay provoked the assault (she slapped
Rice in the face) and on Janay's longer-term response to the incident (electing
to stay with Rice and eventually marrying him) than was devoted to Rice's
knock-out punch to her head.61
Frustrated with the media response to the Rice-Palmer story, survivor
Beverly Gooden decided to share with her family and friends, for the first
time, the abusive conduct that had besieged her own marriage.62 She did so
by sending out the following three tweets under the hashtag #WhyIStayed:

I tried to leave the house once after an abusive episode, and he blocked me.
He slept in front of the door that entire night - #WhyIStayed.

I stayed because my pastor told me that God hates divorce. It didn't cross my
mind that God might hate abuse, too - #WhyIStayed.

He said he would change. He promised it was the last time. I believed him.
He lied - #WhyIStayed.63

58 Interviewwith Gillian Chadwick, Assoc. Professor, Washburn Univ. Sch. of Law (Jan. 1, 2018).
59 Id.
60 See, e.g., Charles M. Blow, Ray Rice and His Rage, N.Y. TIMES (Sept. 14, 2014),
https://www.nytimes.com/2014/09/15/opinion/charles-blow-ray-rice-and-his-rage.html.
61 See, e.g., Greg Howard, Does the NFL Think Ray Rice's Wife Deserved It?, DEADSPIN (July 31,
2014), https://deadspin.com/does-the-nfl-think-ray-rices-wife-deserved-it-1612138248 [https://perma.cc/7D
MH-22R4]; Mel Robbins, Lesson of Ray Rice Case: Stop Blaming the Victim, CNN (Sept. 16, 2014),
http://www.nn.com/2014/09/08/opinion/robbins-ray-rice-abuse/index.html [https://perma.cc/EV9Y-MF24].
62 Hashtag Activism in 2014: Tweeting 'Why I Stayed', NAT'L PUB. RADIO (Dec. 23, 2014),
https://www.npr.org/2014/12/23/372729o58/hashtag-activism-in-2014-tweeting-why-i-stayed [https://
perma.cc/XT7G-99MX] [hereinafterHashtagActivism].
63 Id.
416 University of Pennsylvania Law Review [Vol. 167: 399

Much to Gooden's surprise-she had previously used Twitter only to

make relatively mundane comments about the details of her day64-the
hashtag was soon trending; it remained steadily active for weeks and
continued to receive daily contributions for over a year. 65
The numbers are telling here. Within hours, #WhyIStayed had unleashed
thousands of tweets, with an avalanche of more than 100,000 in the first four
months.66 The sheer scale of the response is a strong indication of a pent-up sense
among survivors that their stories are simply not understood by the larger culture.

b. Physical Versus Psychological Harm

The pronounced disconnect between survivor and nonsurvivor

understandings of the world also strongly shapes common judicial
expectations about experiences of harm. Most judges in our courts are men 67
and presumably-based on statistical probabilities alone-most are also
nonsurvivors.68 Anyone working in the justice system (including the first
author) knows that many nonsurvivor judges in civil protection order cases
tend to assume that, if they were to find themselves in an abusive relationship,

64 Id.
65 Melissa Jeltsen, The Ray Rice Video Changedthe Way We Talk About Domestic Violence, HUFFINGTON
POST (Sept. 8, 2015), https://www.huffingtonpost.com/entry/ray-rice-janay-video-domestic-violence
us-55ec 7 228e4 boo2d5co 7 6 4 6cb [https://perma.cc/R92T-F4FH]. The top three reasons cited by survivors in
the first year of #WhyIStayed posts were: a desire to keep the family intact, love of the abusive partner, and
fear of the dangers inherent in leaving. Id. Early responses to the hashtag included:

@HToneTastic #WhyIStayed - Because his abuse was so gradual and manipulative, I

didn't even realize what was happening to me.

@BBZaftig #WhyIStayed - Because he told me that no one would love me after him,
and I was insecure enough to believe him.

@MonPetitTX - Because I had watched my mother stay and she had watched hers
before that.

HashtagActivism, supra note 62.

66 Hashtag Activism, supra note 62; Lizzie Crocker, Harsh Truths about Domestic Violence: Why
Voicing Terrible Experiences Can Help Others, THE DAILY BEAST (Sept. 20, 2014), https://www.the
dailybeast.com/harsh-truths-about-domestic-violence-why-voicing-terrible-experiences-can-help-
others [https://perma.cc/5QSB-AUES].
67 Thirty percent of judges in U.S. state courts (where domestic violence cases typically are heard)
are women. NAT'L ASS'N OF WOMEN JUDGES, 2016 U.S. STATE COURT WOMEN JUDGES (2016),
https://www.navj.org/statistics/2o16-us-state-court-women-judges [https://perma.cc/LV2M-W9EF].
68 National survey data show that nearly one in three women and one in four men will experience
domestic violence at some point in their lives. MICHELE C. BLACK ET AL., NAT'L CTR. FOR INJURY
PREVENTION & CONTROL & CTRS. FOR DISEASE CONTROL & PREVENTION, THE NATIONAL
INTIMATE PARTNERAND SEXUAL VIOLENCE SURVEY (NISVS): 2010 SUMMARY REPORT 2 (2010).
2019] Discounting Women 417

the most troubling aspect would be the physical, not the psychological,
violence.69 This prioritization of physical over psychological harm is reflected
in the written law: criminal law, most of tort law, and civil protection order
statutes all focus heavily on physical assaults and threats of violence, rather
than emotional abuse or threats of psychological harm.70 For judges and other
justice system actors, the law tends to dictate psychic reality: what the law
prohibits must be what is harmful. The end result is that most judges assume
that the way the world works, and therefore what is externally consistent, is
that physical violence is far worse than psychological abuse. 71
How does this assumption translate into courtroom expectations? A
common judicial expectation is that a "real" victim will lead with physical
violence in telling her story on the witness stand.72 But in fact, many
survivors tell their stories quite differently. For many women, abusive
relationships are characterized by episodic, sometimes relatively infrequent,
outbursts of physical violence and threats.73 The day-to-day, routine abuse
often occurs solely in the psychological realm.74 Psychologists explain that in
many abusive relationships victims are subjected to their partners' coercive
control through a wide variety of psychological tactics, including, for
example, "fear and intimidation[,] . . . emotional abuse, destruction of
property and pets, isolation and imprisonment, economic abuse, and rigid
expectations of sex roles."75 An abusive partner might effectively isolate a
woman and increase his control over her life by sabotaging her efforts to find
or keep a job or to attend a job-training session by refusing to allow her to

69 This prioritization of physical over psychological harm is reflected in the written law: both criminal
statutes and civil protection order laws focus on heavily on physical assaults and threats of violence rather
than emotional abuse or threats of psychological harm. See Margaret E. Johnson, Redefining Harm,
ReimaginingRemedies, and Reclaiming Domestic Violence Law, 42 U.C. DAVIS L. REV. no7, 1143-44 (2009).
70 Id. at 1134-38
71 Id. at 1143. This assumption may well vary depending on the particularities of a survivor's
identity. The stereotype of women as especially frail and vulnerable, for example, derives primarily
from cultural images of white, heterosexual women.
72 This observation is based on the first author's twenty-seven years of litigating hundreds of
civil protection order cases. See supra note 9.
73 See NAT'L CTR. FOR VICTIMS OF CRIME, INTIMATE PARTNER VIOLENCE (2017) (on file
with authors) (demonstrating that emotional and psychological abuse more prevalent than physical
violence); WORLD HEALTH ORG., UNDERSTANDING AND ADDRESSING VIOLENCE AGAINST
WOMEN: INTIMATE PARTNER VIOLENCE (2012), http://appswho.int/iris/bitstream/handle/106
6 5 /77432/WHORHR_1236_eng.pdf;jsessionid= 7 2E1B 4 1F2345oEB8BFA1B9A66985F9oE?sequence=1
[https://perma.cc/4M79-8R8M] (showing lifetime reported prevalence rate of emotional abuse
higher than rate of physical abuse).
74 In one study of 1443 women, 86.2% of those who had experienced physical violence also reported
emotional abuse without physical/sexual violence. Ann L. Coker et al., Frequency and Correlatesof Intimate
PartnerViolence by Type: Physical, Sexual, andPsychologicalBattering, 9 o AM. J. PUB. HEALTH 553, 557 (2000).
75 Judy L. Postmus, Analysis of the Family Violence Option: A Strengths Perspective, 15 AFFILIA
244, 245 (2000).
418 University of Pennsylvania Law Review [Vol. 167: 399

sleep the night before a job interview, hiding or destroying her work clothing,
inflicting noticeable injuries to create a disincentive to appear in public,
hiding car keys or disabling her family car, threatening to kidnap the children
if she leaves them with a babysitter or at day care, and harassing her at work.76
These pervasive, abusive experiences lead an overwhelming number of
survivors to feel that the emotional harm inflicted by their partners is far
more damaging than the physical injuries.77 And this response is consistent
with what we know from research; women report that psychological abuse is
by far the greatest source of their distress,78 regardless of the frequency or
severity of the physical harm they've experienced.
So when a judge in a civil protection order court says to a woman: "tell
me what happened," she may well focus on the harm that is most salient to
her-the constant derogatory name calling, the way he made her feel that
everything was her fault, the way he always checked her phone to see who she
was talking to. The physical violence and threats may take a back seat; she
might not even mention them unless specifically asked.79 Thus, survivors
often frame their courtroom stories in a way that fails to fit the expectations
of most judges, and even of the law itself: what may feel to victims like the
most insidious and intimate brand of abuse can come across to legal
gatekeepers as something that really doesn't count as abuse at all.
The result is what philosophers call a serious "epistemic asymmetry"
between marginally situated survivors and the judges who serve as their
audience.80 I (the first author) have frequently been in courtrooms and

76 Jody Raphael, Battering Through the Lens of Class, n J. GENDER, SOC. POL'Y. & L. 367, 369
(2003); see also Postmus, supra note 75, at 246. For an excellent discussion of the failure of the legal
system to incorporate the full range of survivor harms, see generally Johnson, supra note 69.
77 The authors have observed this prioritization throughout their over fifty years of combined
experience talking to women survivors.
78 See, e.g., Mary Ann Dutton, Lisa A. Goodman & Lauren Bennett, Court-Involved Battered
Women's Responses to Violence: The Role of Psychological, Physical, and Sexual Abuse, 14 VIOLENCE
&

VICTIMS 89, 101-02 (1999) (finding that symptomatic responses to abuse, including PTSD and
depression, were largely predicted by psychological abuse, rather than by physical violence); Mindy B.
Mechanic, Terri L. Weaver & Patricia A. Resick, Mental Health Consequences of Intimate PartnerAbuse,
14 VIOLENCE AGAINST WOMEN 634, 649-50 (2008). In addition, the psychological component of
intimate partner violence appears to be the strongest predictor of posttraumatic stress disorder. See
Maria Angeles Pico-Alfonso, Psychological Intimate PartnerViolence: The Major Predictorof Posttraumatic
Stress Disorderin Abused Women, 29 NEUROSCIENCE & BIOBEHAV. REVS. 181, 189 (2005) ("When the
role of psychological, physical, and sexual aspects of intimate partner violence were considered
separately, the psychological component turned out to be the strongest predictor [of PTSD].").
79 This has been a consistent experience of the first author in representing many hundreds of
women survivors, and watching thousands more, not represented by counsel, tell their stories in
civil protection order court.
80 See, e.g., Rachel McKinnon, Allies Behaving Badly: Gaslighting as Epistemic Injustice, in
ROUTLEDGE HANDBOOK OF EPISTEMIC INJUSTICE 167, 170 (Ian James Kidd et al. eds., 2017)
[hereinafter ROUTLEDGE HANDBOOK].
2019] Discounting Women 419

witnessed judges, presiding over protection order cases, get frustrated with
women who testify at length about their mental anguish at their partner's
hands. These survivors-more than eighty percent of whom proceed without
the benefit of legal representation81-have no idea that this part of their
stories will not trigger legal relief. It is often only after aggressive judicial
questioning that survivors volunteer information about physical abuse or
threats, and when they do, they may sound-to the judges, at any rate-less
concerned about those aspects of their stories than about the day-to-day
psychic harms they have endured. In this context, the admission of physical
abuse can sound to judges like something of an afterthought. Because so many
judges do not understand survivors' frames for their experiences, they may
suspect that women's too-little, too-late testimony about physical violence is
either exaggerated or fabricated out of whole cloth; that they are adding it
only after belatedly realizing that the law demands such facts.
This profound gap in understanding-assuming a woman survivor's story is
less plausible when it fails to meet her judicial audience's expectations about how
the world works-creates real obstacles for survivors. The survivor has tried her
best to faithfully recount her story as she experienced it, and thus with actual
fidelity to the truth. But the judge has a fundamentally different understanding
of how the world works, and he may well assume his is a universal one. As a result,
the woman may well suffer a credibility discount based not on a fair assessment
of her case, but rather on a fundamental failure of understanding.
As the above discussion illustrates, even after nearly five decades of anti-
domestic violence advocacy, many justice system gatekeepers still lack a
sophisticated understanding of what constitutes a truly plausible story about
women's experiences of intimate partner abuse. Extensive and often high-
profile media coverage, radical changes in the civil and criminal laws, the
creation of specialized domestic violence courts, support for a massive
proliferation of shelters and advocacy programs, and millions of dollars'
worth of research82 have not realigned the way many officials go about making
sense of plausible survivor behavior.
The dominant culture's persistent failure to absorb the different experiences
shared among a marginalized group may well derive from what philosopher Gaile
Pohlhaus calls a "willful hermeneutical ignorance."83 Pohlhaus describes how our
culture's asymmetrical authority systems essentially downgrade women into a
status of less competent "knowers" than men. 84 Men, in contrast, are:

81 See Barasch, supra note 11.

82 See, e.g., Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles
of Prosecutors, Judges, and the Court System, it YALE J.L. & FEMINISM 3, 3-4 (1999).
83 Gaile Pohlhaus, Jr., Varieties of Epistemic Injustice, in ROUTLEDGE HANDBOOK, supra note 80, at 17.
84 Id.
420 University of Pennsylvania Law Review [Vol. 167: 399

[E]ncouraged to develop a kind of epistemic arrogance in order to maintain

that their experience of the world is generalizable to the entirety of reality, a
close-mindedness to the possibility that others may experience the world in
ways they cannot, and an epistemic laziness with regard to knowing the world
well in light of those [who are] oppressed .... 85

The result here is that members of the predominantly male, nonsurvivor

culture place too much weight on their own-uninformed, inexperienced-
perceptions about key features of domestic violence, and too little on the
perceptions of survivors with firsthand experience. When male authority
figures are made aware of how their perceptions conflict with the stories of
women survivors, they resolve the conflict by doubting women's articulated
experience.86 Cognitive scientists refer to this phenomenon as "belief
perseverance"-the process by which people tend to hold onto a set of beliefs
as true, even when ample discrediting evidence exists. 87
Women victimized by domestic violence often fail to offer narratives that
are recognized as internally consistent, due, paradoxically enough, to symptoms
of neurological and psychological trauma that are themselves the effects of abuse.
Such women also fail to tell stories that fit the way nonsurvivors believe the
world operates, resulting in the appearance of external inconsistency and, as an
all-too predictable outcome, the reflexive dismissal of their experience within
the justice system and the broader culture. Together, these apparent-but not
real-inconsistencies in survivors' stories cast doubt on the stories' plausibility.
And the real-world costs are steep indeed: judges, police officers, and other
justice system gatekeepers are likely to impose credibility discounts that
interfere with a woman's ability to obtain justice, safety, and healing.

B. Storyteller Trustworthiness

In addition to obstacles rooted in story plausibility, survivors face serious

challenges in convincing justice system gatekeepers to accept them as personally
trustworthy storytellers. In other words, regardless of the content of her story, a
woman may be considered an unreliable reporter of her own experiences. In the
philosophy literature, this is referred to as "testimonial injustice": a discriminatory
disbelief of the storyteller herself, independent of the story she tells.88
Three of the most critical factors that contribute to our assessments of
storyteller trustworthiness are (1) the storyteller's demeanor;89 (2) the

85 Id. at 17.
86 McKinnon, supra note 80, at 170-71.
87 See, e.g., Savion, supra note 45, at 81.
88 FRICKER, supra note 49, at 4.
89 See infra text accompanying notes 912-111.
2019] Discounting Women 421

storyteller's motive;90 and (3) the storyteller's social location.91 All three of these
factors are particularly salient in the experiences of women domestic violence
survivors trying to establish credibility in the eyes of justice system gatekeepers.

1. Demeanor

As discussed above,92 when a survivor tells the story of the abuse she has
experienced, her demeanor may be symptomatic of psychological trauma
induced by extended abuse. Three core aspects of PTSD-numbing,
hyperarousal, and intrusion93-can influence demeanor in obvious ways. And
despite the proliferation of police and judicial training, many gatekeepers
continue to misinterpret-and, as a result, discount-the credibility of
women who display each set of symptoms when telling their stories of abuse.
A survivor can respond to overwhelming trauma by becoming emotionally
numb, a compensating psychic response that often manifests as a highly
constrained affect.94 This symptom can profoundly shape the way a woman
appears in court and, in turn, how a judge or other justice system gatekeeper
perceives her. Numbing may cause many survivors to testify about
emotionally charged incidents with an entirely flat affect or render them
unable to remember dates or details of violent incidents.95 A woman may tell
a story about how her partner sexually assaulted her as if she is talking about
the weather outside. The disconnect between expectations about affect and
story can be jarring and can result in the imposition of a credibility discount.
PTSD also alters demeanor via hyperarousal-that is, an anxious posture
of alertness and reactivity to an imminent danger.96 This "[h]yperarousal can
cause a victim to seem highly paranoid or subject to unexpected outbursts of
rage in response to relatively minor incidents."97 In the courtroom, for example,
an accused abusive partner may give the survivor a particular look or adopt a
particular tone of voice. The judge may not notice anything out of the ordinary,
but the partner does: She knows that the abuser is communicating a message
of intimidation or threat. As a result, she may suddenly break down on the
witness stand, gripped by fear, frustration, fury, or all three. But to the judge,
who has no window into the triggering event, the survivor is likely to sound

90 See infra text accompanying notes 112-141.

91 See infra text accompanying notes 143-165.
92 See supra text accompanying notes 33-40.
93 DSMD, supra note 35, at 271-72.
94 Id. at 272.
95 See Mary Ann Dutton, Understanding Women's Responses to Domestic Violence: A Redefinition of
Battered Woman Syndrome, 21 HOFSTRA L. REV. 1191, 1221 (1993); see also HERMAN, supra note 39, at 45.
96 DSMD, supra note 35, at 272.
97 Epstein, supra note 82, at 41.
422 University of Pennsylvania Law Review [Vol. 167: 399

out of control, even a bit crazy.98 The survivor now fits the stereotype of a
classic hysterical female-an image commonly associated with exaggeration and
unreliability.99 The judge is therefore more likely to apply a credibility discount
in such settings and assume that, regardless of the content of her story, the
survivor is not a fully trustworthy witness.
Finally, as discussed in the context of story plausibility, PTSD symptoms
affect demeanor through intrusion-relivingthe violent experience as if it
were occurring in the present, often through flashbacks.100 Such unbidden re-
experiencing of traumatic events may badly impair a witness' ability to testify
in a narratively seamless-or indeed, even a roughly sequential-fashion.101
Once more, domestic violence complainants can find themselves in a double
bind. The symptoms of their trauma-the reliable indicators that abuse has in
fact occurred-are perversely wielded against their own credibility in court.
Because PTSD symptoms can make abused women appear hysterical, angry,
paranoid, or flat and numb, they contribute to credibility discounts that may be
imposed by police, prosecutors, and judges.102
Even demeanor "evidence" that is not symptomatic of trauma but that is a
"normal" response to stressful courtroom circumstances can lead judges to
discount a survivor's credibility. In a 2017 Boston trial court proceeding, for
example, a woman seeking a one-year extension of her existing protection order
testified about her abiding fear of her former partner. Following a contested
trial, the judge awarded her the extension. Sitting next to her attorney as she
listened to the court's ruling, she smiled and slumped in her seat, her torso
sagging with relief. A few days later, the trial judge, sua sponte, set a
reconsideration hearing. He told the woman that, in his view, she had appeared
"too celebratory" when he had ruled in her favor at the previous hearing. As a
result, he realized that she was not, in fact, a credible witness. The judge then
vacated his previous decision to extend her protection order.103

98 See Mary Przekop, One More Battleground: Domestic Violence, Child Custody, and the Batterers'
Relentless Pursuitof Their Victims Through the Courts, 9 SEATTLE J. SOC. JUST. 1053, 1078 (2011).
99 See id. at 1079 ("Female jurors, according to one study, already believe that women are
generally 'less rational, less trustworthy, and more likely to exaggerate than men."').
100 DSMD, supra note 35, at 275.
101 Epstein, supra note 82, at 41.
102 See, e.g., id.; Cheryl Hanna, No Right to Choose: Mandated Victim Participationin Domestic Violence
Prosecutions, 109 HARV. L. REV. 1849, 1878 (1996); Laurie S. Kohn, Barriers to Reliable Credibility
Assessments: Domestic Violence Victim-Witnesses, 11 AM. U. J. GENDER SOC. POLY & L. 733, 742 (2003).
103 Interview with Community Advocate, Transition House, in Cambridge, Mass. (Dec. 18, 2017).
The classic example of the justice system's misuse of affective evidence is Albert Camus's novel, The
Stranger. The protagonist, Meursault, is sentenced to death for a murder based in part on a
condemnation of his unrelated, "inappropriate" actions in the days following his own mother's death.
Witnesses testified that Meursault did not cry but smoked a cigarette and drank coffee as he sat near
his mother's coffin, and that the day after her funeral he swam in the ocean, saw a comedy film, and
then made love with a woman he'd long been romantically interested in. This behavior, inconsistent
2019] Discounting Women 423

Credibility discounts based on presumed inappropriate demeanor are

imposed by other justice system gatekeepers as well. One attorney recalls a
recent California case as follows:

In my county, domestic violence cases involving children may be referred to

court evaluators to meet with the parties and provide the judge with an
assessment as to the veracity of the allegations. One client went to her
appointment with the evaluator and reported that her ex-boyfriend had been
texting her in violation of an initial, temporary protection order. She showed
her phone to the evaluator, who saw that she had saved her ex-boyfriend's
phone number under an expletive, instead of using his actual name. Based on
this evidence of the woman's anger, the evaluator determined that she was not
afraid of the respondent (a fact irrelevant to the applicable legal standard), and
for this reason deemed her domestic violence claim inconclusive.104

At the same time, abusive men often provide a sharp credibility contrast;
they tend to excel at presenting themselves as self-confident and in control,
are adept at manipulation, and "are commonly able to lie persuasively,
sounding sincere," all of which tends to trigger assumptions that they are in
fact credible.105 A 2015 study of survivors conducted by the National Domestic

with society's image of a grieving son, led the community to despise him and a jury to condemn him
for a murder to which he had no connection. See ALBERT CAMuS, THE STRANGER 8, 20-21, 64
(Matthew Ward trans., Vintage Books 1988) (1942). The tendency, in both the public and the justice
system, to discount credibility and assume guilt persists today, as demonstrated by the case of Amanda
Knox, a young woman from Seattle who went to Perugia, Italy, and was twice convicted in Italian
courts-and, years later, fully exonerated-of murdering her housemate. See Martha Grace Duncan,
What Not to Do When Your Roommate Is Murderedin Italy: Amanda Knox, Her "Strange"Behavior, and the
Italian Legal System, HARV. J.L. & GENDER-CREATIVE CONTENT, Sept. 19, 2017, http://harvard
jlg.com/2o17/o9/what-not-to-do-when-your-roommate-is-murdered-in-italy-amanda-knox-her-strange-
behavior-and-the-italian-legal-system-by-martha-grace-duncan/ [https://perma.cc/VBS7-P23B]. Amanda's
initial conviction was heavily dependent on her "inappropriate" actions in the days following the
murder, including kissing her boyfriend not far from the scene, cuddling with him at the police station,
turning a cartwheel-at a police officer's request-while waiting to be interviewed, and shopping for
underwear not long after the murder (because she had no access to her apartment, which was locked
down as a crime scene). Id. at 10-23. Similarly, Lindy Chamberlain was convicted of murdering her
infant daughter while camping in the Australian outback. Clyde Haberman, Vindication at Last for a
Woman Scorned by Australia's News Outlets, N.Y. TIMES (Nov. 16, 2014), https://www.nytimes.com/
2o14/1/17/us/vindication-at-last-for-a-woman-scorned-by-australias-news-media.html. Public sentiment
condemned Chamberlain early on, based largely on her attire and affect in the courtroom. Lindy described
feeling "trapped in a no-win situation. 'If I smiled, I was belittling my daughter's death .... If I cried,
I was acting."' Id. Forensic evidence subsequently exonerated Chamberlain, confirming the accuracy of
her report that a wild dog pulled her daughter out of a tent and killed her. Id.
104 Interviews with Jane Stoever, Clinical Professor of Law, Univ. of Cal., Irvine Sch. of Law
(Jan. 6 & 9, 2018).
105 LUNDY BANCROFT & JAY G. SILVERMAN, THE BATTERER AS PARENT 15-16 (1st ed.
2002); see also Dana Harrington Conner, Abuse and Discretion:EvaluatingJudicialDiscretionin Custody
Cases Involving Violence Against Women, 17 AM. U. J. GENDER SOC. POL'Y & L. 163, 174
424 University of Pennsylvania Law Review [Vol. 167: 399

Violence Hotline is full of examples of this profoundly damaging credibility

gap, including this one from a female survivor: The police made "things worse
and act[ed] like I was the bad guy because I came in crying, but my abuser
was calm after 2 years of hell-duh[,] I was scared and he was fine."106
The skeptical reactions of justice system gatekeepers to survivor demeanor can
trigger a vicious cycle of credibility discounts. The more a police officer or judge
appears to doubt a survivor's credibility, the more likely she is to feel upset,
destabilized, or even (re)traumatized.107 This reaction may trigger an increase in
the intensity of her emotionally "inappropriate" demeanor, making her appear
even less credible.108 In other words, the testimonial injustice that women
experience as they seek to be recognized as credible witnesses to their own abuse
can become a self-fulfilling phenomenon: they internalize the court's image of
themselves as unreliable narrators of their own experience.109
Social psychologists have coined the term "stereotype threat" to explain such
harm. Stereotype threat arises when a person feels that she is at risk of conforming
to a cultural stereotype about her particular social group. The existence of negative
stereotypes-regardless of whether an individual herself accepts them-can make
that individual anxious, and harm her ability to perform.110 Thus, the existence of

(2009)("[B]atterers tend to be self-confident and ultra-controlled in their outward appearance and

thus testify in a way that is traditionally perceived as truthful.").
106 TK LOGAN & ROB VALENTE, NAT'L DOMESTIC VIOLENCE HOTLINE, WHO WILL HELP
ME? DOMESTIC VIOLENCE SURVIVORS SPEAK OUT ABOUT LAw ENFORCEMENT RESPONSES 9-10
(2015), http://www.thehotline.org/resources/law-enforcement-responses [https://perma.cc/CCSZ-ZS6H]
[hereinafter National Hotline Survey]. Two national studies, both conducted in 2015, help us
understand what is happening on the ground in terms of police refusal to credit survivor stories.
One study, conducted by the ACLU, surveyed more than 900 domestic violence service providers
about their clients' experiences with police. ACLU, RESPONSES FROM THE FIELD: SEXUAL
ASSAULT, DOMESTIC VIOLENCE AND POLICING (2015), www.aclu.org/responsesfromthefield
[https://perma.cc/3CKD-6J9E] [hereinafter Responses from the Field]. The other, conducted by the
National Domestic Violence Hotline, surveyed survivors themselves. National Hotline Survey, supra
note 106, at 2. In the National Domestic Violence Hotline survey, just over half of the 637 women
surveyed reported that they had never called the police for help when they experienced domestic
violence. Id. at 2. When asked for the reason, fifty-nine percent of these participants said that their
decision was based on either their fear that the police would not believe them or-and this is where
we get to consequential credibility-that theywould do nothing in response to their reports of abuse.
Id. at 4. Much the same perceived deficit in consequential credibility hampered the reporting efforts
of the remaining 309 women interviewed in the National Hotline Survey who had in fact interacted
with the police: two-thirds of these women reported that they were "somewhat or extremely afraid"
to call again in the future, based on the same sets of concerns. Id. at 8.
107 See Jennifer Saul, Implicit Bias, Stereotype Threat, and Epistemic Injustice, in ROUTLEDGE
HANDBOOK, supra note 8o, at 236-38.
108 See supra text accompanying notes 91-107; infra notes 109-Ito.
109 Saul, supra note 107.
110 See, e.g., Claude M. Steele, A Threat in the Air: How Stereotypes Shape IntellectualIdentity and
Performance, 52 AM. PSYCHOLOGIST 613, 617 (1997); Claude M. Steele, Steven J. Spencer & Joshua
Aronson, Contending with Group Image: The Psychology of Stereotype and Social Identity Threat, 34
ADVANCES EXPERIMENTAL SOC. PSYCHOL. 379, 389 (2002).
2019 ] Discounting Women 42S

such stereotypes, and women's concern about conforming to them, can diminish
survivors' ability to effectively communicate their experiences.111

2. Motive

To assess the trustworthiness of a woman's account of domestic violence,

judges and other gatekeepers are inevitably (though perhaps unconsciously)
influenced by stereotypical beliefs about women, particularly in the context
of intimate relationships.112 Although such beliefs vary by the individual,
certain fundamental cultural tropes about women's motives to lie and
manipulate tend to resonate here. Two of the most persistent and crude
stereotypes about women's false allegations about male behavior are the
grasping, system-gaming woman on the make and the woman seeking
advantage in a child custody dispute.
A recent review of the first twenty websites to appear in a Google search of
the term "domestic violence false allegations" underlines the power of these
stereotypes in the legal context. The vast majority of the "hits" in response to this
search were websites maintained by small firm and sole practitioner defense
attorneys; in other words, lawyers available to represent those accused of domestic
violence, typically in the face of criminal prosecution. These lawyers post advice
for potential clients, and most explain that "false allegations" of domestic violence
tend to derive from women scheming for some sort of material payday or other
advantage, such as a leg up in a child custody case.113 Each of these stereotypes,
and their implications for women's credibility, is explored below.

111 See Saul, supra note 107, at 238.

112 Philosopher Kristie Dotson calls this "testimonial quieting." Kristie Dotson, Tracking
Epistemic Violence, Tracking Practices of Silencing, 26 HYPATIA 236, 242-43 (2011).
113 See Memorandum Analyzing First Twenty Hits for "Domestic Violence False Allegations"
(Nov. 15, 2017) (on file with authors). The twenty websites are: https://www.breedenfirm.com/
domestic-violence/defending-false-accusations-domestic-violence; https://billingsandbarrett.com/new-
haven-criminal/domestic-violence-lawyer/false-accusations; https://www.adamyounglawfirm.com/
Criminal-Defense/Violent-Crimes/False-Allegations-Of-Domestic-Violence.shtml; https://criminal
lawde.com/dc-domestic-violence-lawyer/false-accusations; https://www.bajajdefense.com/san-diego-
domestic-violence-attorney; https://www.jonathanmharveyattorney.com/Domestic-Violence/False-
Allegations.shtml; https://www.lafaurielaw.com/Criminal-Defense/Domestic-Violence-Order-of-
Protection-in-Family-IDV-Courts/False-Domestic-Violence-Accusations.shtml; https://chicago
criminaldefenselawyer.com/false-accusations-domestic-violence; http://www.amcoffey.com/Criminal
-Defense-Overview/False-Domestic-Violence-Allegations.shtml; https://criminallawyermaryland.net/
maryland-domestic-violence-lawyer/false-accusations; http://www.nlegal.com/blog/2017/february/have-
you-been-falsely-accused-of-domestic-violence; http://www.scottriethlaw.com/blog/2017/06/how-false-
allegations-of-domestic-violence-can-ruin-your-life.shtml; https://www.weinbergerlawgroup.com/
domestic-violence/false-allegations/defending-faqs; https://www.dworinlaw.com/false-domestic-violence-
austin-texas; https://stearns-law.com/family-law-services/domestic-violence/false-accusations; http://www.
inlandempiredomesticviolence.com/Domestic-Violence/Falsely-Accused-of-Domestic-Violence.aspx;
https://www.carlahartleylaw.com/Domestic-Violence-And-Criminal-Law/False-Accusations-Of-
Domestic-Violence.shtml; http://www.bosdun.com/Blog/201 7 /March/What-To-Do-if-You-Have-
426 University of Pennsylvania Law Review [Vol. 167: 399

a. The Grasping Woman on the Make

The grasping woman stereotype flourished in the Reagan era, when

legislators portrayed poor women as "welfare queens," whose family planning
decisions were solely dependent on a desire to expand their monthly benefit
check by a few dollars. Though factually discredited,114 the welfare queen
image continues to have an impact on the law: to this day, fifteen states
prohibit families from receiving higher benefit levels if a baby is born while
the household is on assistance, in an effort to ensure that cash aid will not
serve as a putative incentive for poor women to have more children.115
This same stereotype is reflected in our contemporary obsession with
women as "gold diggers," based on the 1933 movie of that name. 116 This
stereotype imbues the lyrics of the eponymous hip hop song about women who
target wealthy men, falsely claim that these men are the fathers of their children,
and then soak them for child support.117 It is readily apparent in Silicon Valley,

Been-Wrongly-Accused-of-D.aspx; http://www.flowermoundcriminaldefense.com/domestic-violence;
https://www.kefalinoslaw.com/miami-domestic-violence-defense-lawyer.
114 See Stephen Pimpare, Laziness Isn't Why People Are Poor. And iPhones Aren't Why They Lack
Health Care, WASH. POST (Mar. 8, 2017), https://www.washingtonpost.com/posteverything/wp/
2017/03/08/laziness-isnt-why-people-are-poor-and-iphones-arent-why-they-lack-health-care/?utm_
term=.59f65871be13; Eduardo Porter, The Myth of Welfare's Corrupting Influence on the Poor, N.Y.
TIMES (Oct. 20, 2015), https://www.nytimes.com/2o15/1o/21/business/the-myth-of-welfares-corrupt
ing-influence-on-the-poor.html.
115 Michele Estrin Gilman, The Return of the Welfare Queen, 22 AM. U. J. GENDER SOC. POL'Y
& L. 247, 249 (2014).
116 GOLD DIGGERS OF 1933 (Warner Bros. 1933) (portraying aspiring actresses experiencing
financial hardship who conspire to find wealthy husbands).
117 Kanye West's song, Gold Digger, contains the following lyrics:

Eighteen years, eighteen years

She got one of your kids got you for eighteen years
I know somebody payin' child support for one of his kids
His baby mama car and crib is bigger than his
You will see him on TV, any given Sunday
Win the Super Bowl and drive off in a Hyundai
She was supposed to buy your shorty Tyco with your money
She went to the doctor, got lipo with your money
She walkin' around lookin' like Michael with your money ...
If you ain't no punk
Holla "We want prenup! We want prenup!" (Yeah!)
It's somethin' that you need to have
'Cause when she leave yo' ass she, gon' leave with half
Eighteen years, eighteen years
And on the eighteenth birthday he found out it wasn't his?!
... Now I ain't saying she a gold digger ...
But she ain't messin' with no broke n* . ..

KANYE WEST, Gold Digger, on LATE REGISTRATION (Roc-A-Fella Records & Def Jam
Recordings 2005).
2019 ] Discounting Women 427

where tech magnates swap warnings about women they refer to as "founder
hounders."118 These gender stereotypes are, of course, shaped by race, class, and
other identity-based assumptions. The image of the welfare queen, as one
example, was purposefully designed to draw its power from racialized
narratives;119 at the same time, it operates more broadly to negatively affect
societal perceptions of all women, perhaps especially those who are also poor or
low income. As with all stereotypes, those that affect women as women are not
monolithic in their impact: gender stereotypes are racialized (the unrapeable
black woman, for example), and racial discounts are gendered (blackness in
women is stigmatized in ways specific to black women in particular). Despite
this diversity of impact and complexity of harm, the bottom line is that we tend
to discount the trustworthiness of all women who appear to be motivated by a
desire to get something, either from the government or from their male partners.
This social myth is particularly lethal for women seeking safety from
intimate partner violence, especially those who are trying to exit their abusive
relationships. Most survivors need concrete resources to bring about this
fundamental change in their living situation. Although a woman's informal
network of support, made up of family and friends, may be able to help by
providing a place to stay, transportation, childcare, or financial assistance,120
these resources may well not be sufficient and are often stop-gap or finite in
nature. Eventually, many abuse survivors need to secure additional resources,
frequently by turning to the social welfare system or the safety furnished by
a civil protection order.121 This quest for some sort of subsidized autonomy
is, once again, a reflection of the underlying dynamics of domestic abuse.122

118 See Emily Chang, "Oh My God, This Is So F---ed Up": Inside Silicon Valley's Secretive, Orgiastic
Dark Side, VANITY FAIR (Feb. 2018), https://www.vanityfair.com/news/2o18/o1/brotopia-silicon-
valley-secretive-orgiastic-inner-sanctum ("Whether there really is a significant number of such
women is debatable. The story about them is alive and well, however, at least among the wealthy
men who fear they might fall victim.").
119 Premilla Nadasen, From Widow to "Welfare Queen": Welfare and the Politicsof Race, 1 BLACK
WOMEN, GENDER & FAMILIES, 52 (2007), 69-70.
120 Ruth E. Fleury-Steiner et al., ContextualFactorsImpactingBattered Women's Intentions to Reuse the
Criminal Legal System, 34 J. COMMUNITY PSYCHOL. 327, 339 (2006); Lisa A. Goodman & Katya Fels
Smyth, A Callfor a Social Network-Oriented Approach to Services for Survivors of Intimate Partner Violence, 1
PSYCHOL. OF VIOLENCE 79, 81 (2011); Stephanie Riger, Sheela Raja & Jennifer Camacho, The Radiating
Impact of Intimate PartnerViolence in Women's Lives, 17 J. INTERPERSONAL VIOLENCE 184, 198-200 (2002).
121 See, e.g., ELEANOR LYON, SHANNON LANE & ANNE MENARD, NAT'L INST. JUSTICE,
MEETING SURVIVORS' NEEDS: A MULTI-STATE STUDY OF DOMESTIC VIOLENCE SHELTER
EXPERIENCES iv (2008) (noting that "domestic violence shelters address compelling needs that
survivors cannot meet elsewhere"); PATRICIA TJADEN & NANCY THOENNES, NAT'L INST. JUSTICE,
EXTENT, NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE: FINDINGS FROM
THE NATIONAL VIOLENCE AGAINST WOMEN SURVEY 52 (2000), https://www.ncjrs.gov/pdffilesl/
nij/181867.pdf [https://perma.cc/3TSQ-6PKY] (noting that a substantial percentage of women
survivors of intimate partner violence seek a civil protection order).
122 See supra text accompanying notes 112, 114.
428 University of Pennsylvania Law Review [Vol. 167: 399

An all-too-common strategy of abusers is to force women into social isolation,

thus limiting their access to those family and friends who might have been
willing to provide them with help.123 The law in most states authorizes system
officials to provide survivors assistance such as priority in shelter access, or a
protection order provision ordering their abusive partner to vacate a home in
which they share a legal interest.124 Again, these resources for survivors are
built into our law and policy for good reason-survivors need them to stave
off repeat violence.125 But when women actually pursue such concrete,
practical assistance, they often suffer an immediate credibility discount; their
trustworthiness is now colored by the suspicion that they are motivated by a
desire to obtain shelter or sole access to a residence, rather than by the urgent
need to protect themselves from violence.126
I (the first author) have participated in numerous judicial training sessions
with judges in the D.C. Superior Court's Domestic Violence Unit. Year after year,
I have listened as veteran judges warn those who are more junior, cautioning that
"so many times I hear these stories and something seems wrong; then I realize the
woman is just here to get shelter, or to kick her ex out of the house without having
to go through a divorce. Keep an eye out for that." These judges are encouraging
their colleagues to discount the personal trustworthiness of women based on their
efforts to seek legally authorized resources on their path to safety.127

123 LISA A. GOODMAN & DEBORAH EPSTEIN, LISTENING TO BATTERED WOMEN: A

SURVIVOR-CENTERED APPROACH TO ADVOCACY, MENTAL HEALTH, AND JUSTICE 107 (2009);
see also Donna Coker, Shifting Powerfor Battered Women: Law, Material Resources, and Poor Women of
Color, 33 U.C. DAVIS L. REV. 1009, 1021-22 (2000) ("[Battered women] frequently become estranged
from family and friends who might otherwise provide them with material aid."); Jody Raphael,
Rethinking CriminalJustice Responses to Intimate Partner Violence, 10 VIOLENCE AGAINST WOMEN
1354, 1357 (2004) ("Women are not allowed to talk on the telephone, visit their friends, attend
church, decide on their own what to wear, or go to school or work.").
124 SUSAN L. KEILITZ, PAULA L. HANNAFORD & HILLERY S. EFKEMAN, NAT'L CTR. FOR
STATE COURTS, CIVIL PROTECTION ORDERS: THE BENEFITS AND LIMITATIONS FOR VICTIMS
OF DOMESTIC VIOLENCE, 12-14 (1997), https://www.ncjrs.gov/pdffilesl/Digitization/164866NCJRS.pdf
[https://perma.cc/3SXH-SJ6E].
125 See, e.g., MONICA MCLAUGHLIN, NAT'L LOw INCOME HOUS. COAL., HOUSING NEEDS
OF VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, DATING VIOLENCE, AND STALKING,
1 (2017), http://nlihe.org/sites/default/files/AG-2o1 7 /2ot 7 AGCho6-SoHousing-Needs-of-Victims-
of-Domestic-Violence.pdf [https://perma.cc/SJT 7 -2DBX] (explaining that "safe housing can give a
survivor a pathway to freedom").
126 As noted above, women of color may be especially likely to experience such credibility
discounts due to the racialized nature of the stereotypes that drive them.
127 One more example: In a 2012 Baltimore protection order case, Judge Bruce S. Lamdin
listened to Heather Myrick-Vendetti testify about her husband's abuse, including the following
statement: "He pinned me to a shelf, busted my arm open, left a gash in my forearm. He then threw
me down on the floor and stomped me in the ribs so hard that I peed my pants. My oldest, who was
12 years old, got my son and hid in a closet with a hammer and called someone to come get us."Judge
Bruce Lamdin Interrogates Woman Seeking Restraining Order, WASH. POST (Sept. 9, 2012),
https://www.washingtonpost.com/opinions/judge-bruce-lamdin-interrogates-woman-seeking-
2019] Discounting Women 429

And attorneys representing survivors pick up on the power that these unfair
stereotypes can exert in the courtroom. Until recently, I (the first author) had
often joined the ranks of many other victim advocates in doing just that: when
representing a client who is privileged enough not to need much assistance from
the court (perhaps she doesn't have children with her abusive partner, she
doesn't live with him, or their relationship was relatively limited so she was more
easily able to cut him out of her life), I have argued that the court should find
my client especially crediblefor this reason. In other words, because my client is
seeking only narrowly limited, safety-based remedies, rather than requesting the
full range of relief legally available to her, the court should view her as
particularly credible. I've done this for the same reason lawyers use to make
every strategic decision: because my audience-the court-is likely to buy the
argument. My lawyering instincts tell me that a judge will, in fact, understand
a more limited request for relief as a real indication of a survivor's credibility. 128
But I have belatedly come to realize that in pursuing this approach I am
helping one client but simultaneously lending support to a prejudicial, gender-
based credibility discount. Logically, the flip side of my argument must also
be true: judges view survivors who seek more extensive remedies as less
credible-as women who may be fabricating or exaggerating their allegations
in order to obtain resources such as shelter and financial support.129
It is worth noting here that these judicial suspicions-discounting
credibility when a woman asks for the full scope of available relief-simply
do not arise in contexts that are not dominated by women litigants. It is
laughable to imagine a judge suspecting the credibility of a business owner if,
after presenting a colorable legal claim, that owner sought to recover an

restraining-order/2012/o9/o9/614fd664-faae-11e1-875c-4c21cd68f653_video.html?tid=areinl; see also

Baltimore County Judge Bruce Lamdin Faces Complaint (WBAL TV television broadcast Sept. 4, 2012),
https://www.wbaltv.com/article/911-dispatcher-responds-to-call-at-his-own-home-i-just-handled-it-
like-any-other-call/25239609 [https://perma.cc/PP3K-83BB]. Ms. Myrick-Vendetti then described
her husband's attempt to burn down their house a few days later. Id. When she told the judge that
her husband constituted a threat to her safety and requested that he be ordered to leave the home
they shared, Judge Lamdin responded, "Ma'am there are shelters," and "It confounds me that people
tell me they are scared for their life and then they stay in a situation where they can remove
themselves and go to a shelter." Id. Although this story is an extreme one, it reflects a deeply held
suspicion that woman seeking resources are operating from false motives and cannot be trusted.
128 Other lawyers representing survivors report doing the same. See, e.g., Interview with Megan
Challender, Supervising Attorney, Md. Ctr. for Legal Assistance (July 12, 2017) (reporting that she has
observed lawyers making these arguments in court on multiple occasions); Interview with Margo Lindauer,
Assoc. Teaching Professor & Dir. of the Domestic Violence Inst., Ne. Univ. Sch. of Law (Jan. 21, 2018).
129 One survivor attorney recently shared an experience where the judge in a Washington,
D.C., civil protection order case explicitly ruled that the survivor was credible because "she was not
asking for anything other than to be left alone." Interview with Megan Challender, supra note 128;
see also Interview with Courtney K. Cross, Assistant Clinical Professor of Law & Dir., Domestic
Violence Clinic, Univ. of Ala. Sch. of Law (July 12, 2017).
430 University of Pennsylvania Law Review [Vol. 167: 399

extensive range of statutorily enumerated remedies. Why are women

subjected to male violence held to a different standard?
Credibility discounts based on the grasping woman stereotype extend
beyond the judicial realm to other gatekeepers. In Washington, D.C., for
example, court-appointed attorney negotiators meet with unrepresented
parties in civil protection order cases and attempt to resolve matters without
the need for a contested trial. Several of these negotiators have, on many
occasions, shared the view that petitioners are not "real" victims of domestic
violence, but instead are there to get housing and other resources. 130 These
suspicions about survivors' motives color the work of the D.C. Superior Court's
Crime Victim's Compensation ("CVC") program as well. The CVC provides a
variety of material and housing-related resources to local victims of crime. A
survivor is entitled to obtain emergency shelter based on an initial, emergency
judicial determination that she is entitled to a short-term temporary protection
order. CVC officials then monitor her actions. If the court docket reveals that
she ultimately has dropped her request for a permanent order-regardless of
whether this decision was made because she was reassaulted and intimidated
into doing so, she decided to move to another jurisdiction to better protect
herself, or she was unable to accomplish the necessary service of process-the
CVC will peremptorily terminate her request for assistance.131
This grasping woman stereotype puts survivors in a terrible bind. We know
that victims of domestic violence frequently are unable to successfully handle
the violence in their lives without seeking outside help.132 Many, if not most,
need the full set of remedies permitted in civil protection order statutes, such
as shelter, financial support, and other assistance. By superimposing
stereotype-based credibility assessments onto women's requests for relief, we
are forcing these women to make an untenable choice: they may either seek
the full range of assistance they actually need to achieve safety, but risk
suffering a court-imposed credibility discount; or they may make a bid to
appear more credible by forgoing essential resources needed for protection.
And, of course, the women who are most disadvantaged, and thus need the
greatest amount of help, are the ones who are least likely to be believed.

130 This observation is based on the first author's extensive experience litigating hundreds of
civil protection order cases. See supra note 9. Other D.C. domestic violence advocates confirm the
routine nature of such comments. See, e.g., Interview with Gillian Chadwick, supra note 58; Interview
with Courtney K. Cross, supra note 129.
131 See Interview with Janese Bechtol, Chief, Domestic Violence Section, Office of the
Attorney General for the District of Columbia (Aug. 17, 2018). For an overview of the Washington,
D.C., crime victim compensation program, see Crime Victim Compensation & Services in Washington,
D.C., Interview by Len Sipes with Laura Banks Reed, Dir., Crime Victims' Compensation Program
of the D.C. Superior Court (Mar. 3, 2014), https://media.csosa.gov/podcast/transcripts/category/
audiopodcast/pagell/ [https://perma.cc/LYK5-8H5V].
132 See LYON, LANE & MENARD, supra note 121.
2019] Discounting Women 431

b. The Woman Seeking UnfairAdvantage in a Child Custody Dispute

Women seeking to escape violent relationships often must turn to the family
courts to resolve custody and other issues with their abusive partners. And
virtually every state custody statute requires family court judges to consider
intimate partner abuse as a factor weighing against an award of custody to the
parent-abuser.133 Indeed, the U.S. House of Representatives recently passed a
concurrent resolution urging state courts to determine family violence claims and
risks to children before turning to the consideration of any other custody factors.134
The rationale for such legal provisions is that parent-on-parent violence
harms not only the victim-parent, but also the children, who may witness the
violence or its aftermath.135 But women's experience in these courts defies the
sense of the law as written: in fact, mothers' allegations of domestic violence
are discounted or even fully discredited by family court judges.
Recent studies of family court custody decisions reveal that mothers who
allege intimate partner violence are actually more likely to lose custody than
mothers who do not make such assertions.136 In other words, a claim of parent-
on-parent violence operates to undermine, rather than strengthen, custody
requests made by survivor-mothers. Judges tend to conclude, typically with no
evidence other than the perpetrator-father's uncorroborated assertion, that
women are fabricating abuse allegations as part of a strategic effort to alienate
the children from their father.137 The mother's experience of abuse is turned on
its head to support the perpetrator's claim that he is the better parent.

133 AM. BAR ASS'N, Custody Decisions in Cases with Domestic Violence Allegations,
https://www.americanbar.org/content/dam/aba/images/probonopublic-service/ts/domesticviolence
_charti.pdf (demonstrating that Connecticut is the sole exception to this rule).
134 H.R. Con. Res. 72, 115th Cong. (Sept. 25, 2018).
135 See Stephanie Holt, Helen Buckley & Sadhbh Whelan, The Impact of Exposure to Domestic
Violence on Children and Young People: A Review of the Literature, 32 CHILD ABUSE & NEGLECT 797,
797 (2008) ("This review finds that children and adolescents living with domestic violence are at
increased risk of experiencing emotional, physical and sexual abuse, of developing emotional and
behavioral problems and of increased exposure to the presence of other adversities in their lives.").
136 See Joan S. Meier & Sean Dickson, Mapping Gender: Shedding Empirical Light on Family
Courts' Treatment of Cases Involving Abuse and Alienation, 35 L. & INEQUALITY 311, 328 (2017)
("Overall, fathers who were accused of abuse and who accused the mother of alienation won their
cases 72% of the time; slightly more than when they were not accused of abuse (67%)."); see also Janet
R. Johnston, Soyoung Lee, Nancy W. Olesen & Marjorie G. Walters, Allegations and Substantiations
of Abuse in Custody-DisputingFamilies, 43 FAM. CT. REV. 283, 290 (2005).
137 Meier & Dickson, supra note 136, at 318. This credibility discount is particularly
disconcerting in light of studies examining the reliability of domestic violence allegations in the
context of family law proceedings. Such studies have found that the allegations of women-mothers
are substantiated-in other words, corroborated by sources in addition to the testimony of the
woman who asserted them-in a high percentage of cases. See, e.g., Johnston et al., supra note 136, at
290 (finding corroboration rate of sixty-seven percent). Although the remainder of these allegations
lack independent corroboration, this does not mean that they are false; instead, it simply means that
insufficient additional information exists beyond the parent's testimony.
432 University of Pennsylvania Law Review [Vol. 167: 399

Family court studies further reveal that when a father alleges that a mother has
engaged in "parental alienation,"138 his chances of being awarded custody increase
even when his allegations are not credited or are left unresolved by the court.139 The
judicial assumption that women falsely allege or exaggerate domestic violence in
an effort to obtain custody runs so deep that family court judges appear to cling
to it even in cases where they themselves determine that such a claim is untrue. 140
The credibility discounting operates in the reverse direction as well. At a
2016 "Bench-Bar" social event, two judges involved with the D.C. domestic
violence court commented that they were well aware that women who file for
protection orders after having already initiated custody proceedings are
trying to "pull the wool over [the judge's] eyes."141
The result is that survivor-mothers often leave family court having been
wrongly denied custody of their children, and may be unfairly discredited and
denied relief in their civil protection order hearings as well. A judicial
willingness to discount their trustworthiness can have repercussions that will
last throughout their own lives and those of their children.

3. Social Location

Cognitive psychology teaches us that our wider culture-as translated by

the media, authority figures, family members, etc.-transmits stereotypes to
individuals that we then adopt on a deep, unconscious level.142 Our most

138 Parental alienation syndrome is a hypothesized disorder first proposed by psychiatrist

Richard Gardner in 1985. Gardner believes that the disorder arises primarily in the context of child
custody disputes and involves a child being manipulated by one parent into internalizing the
unjustified denigration of the other parent. In the more than thirty intervening years, the diagnosis
has yet to be accepted in the mental health community. See Holly Smith, ParentalAlienationSyndrome:
Fact or Fiction? The Problem with Its Use in Child Custody Cases, n1 U. MASS. L. REV. 64, 64 (2016).
Instead, a great deal of psychological and legal literature has critiqued the construct, and both leading
researchers and most professional institutions have renounced the concept as lacking in empirical
basis or objective merit. See Joan S. Meier, A HistoricalPerspective on ParentalAlienation Syndrome and
ParentalAlienation,6 J. CHILD CUSTODY 232, 236 (2009) ("The critiques of Gardner's PAS are legion
... "). Despite all of this, claims of parental alienation syndrome have come to dominate custody
litigation in family court, especially in cases involving allegations of abuse. Id. at 233.
139 Meier & Dickson, supra note 136, at 331 ("[W]hen courts believed mothers were alienating, they
switched custody to the father 69% of the time; and even when the alienation claim was rejected or not
decided, they transferred custody of the children to an allegedly abusive father 25-50% of the time.").
140 This refusal to accept facts that contradict a person's theory of how the world works is
explained in part by the concept of confirmation bias. See supra text accompanying note 41.
141 Interview with Andrew Budzinski, Graduate Teaching Fellow, Georgetown Univ. Law Ctr.
Domestic Violence Clinic (Jan. 22, 2018).
142 See, e.g., RACHEL D. GODSIL ET AL., PERCEPTION INST., 2 SCIENCE OF EQUALITY : THE
EFFECTS OF GENDER ROLES, IMPLICIT BIAS, AND STEREOTYPE THREAT ON THE LIVES OF
WOMEN AND GIRLS 12 (2016), https://equity.ucla.edu/wp-content/uploads/216/11/Science-of-
Equality-Volume-2.pdf [https://perma.cc/5Q62-R9U7 ]("Popular culture plays an important part in
2019] Discounting Women 433

commonly held derogatory stereotypes include those that devalue the words
of women, people of color, those living in poverty, and other marginalized
groups. Once formed, these stereotypes tend to be highly resistant to
counterevidence.143 As philosopher Miranda Fricker explains, "If we examine
stereotypes of historically powerless groups such as women, African Americans,
or poor/working-class people, they often are associated with attributes related to
poor truth-telling in particular: things like over-emotionality, lack of logical
thinking, inferior intelligence, being on the make, etc."144
Although it is outside our scope to make a full case for each of these social
categories, we will examine one of them in detail here: the practice of
discounting women's credibility as women. In Rebecca Solnit's compelling
essay, Cassandra Among the Creeps,145 she describes the myth of Cassandra,
daughter of the king of Troy. When the god Apollo tried to seduce her,
Cassandra rejected him. In retribution, Apollo cursed Cassandra so that,
although she could accurately foresee the future, her people always
disbelieved her and shunned her as a crazy liar. Solnit notes,

I have been thinking of Cassandra as we sail through the choppy waters of

the gender wars, because credibility is such a foundational power in those
wars and because women are so often accused of being categorically lacking
in this department. Not uncommonly, when a woman says something that
impugns a man .. . or an institution . .. the response will question not just
146
the facts of her assertion but her capacity to speak and her right to do so.

This refusal to listen to women's stories of male abuses of power runs so deep
that it may have played a significant role in Sigmund Freud's early decision to
upend his entire psychoanalytic theory.147 Early in his career, Freud listened as his
female patients told him story after story of their experiences of childhood sexual
abuse, often at the hands of their fathers.148 Freud believed these stories and, in
the late 188os developed his "seduction theory," arguing that early childhood

reinforcing these gendered associations. Implicit biases are not the result of individual psychology-
they are a social phenomenon that affects us all.").
143 Jeremy Wanderer, Varieties of TestimonialInjustice, in ROUTLEDGE HANDBOOK,supra note 80, at 28.
144 See FRICKER, supra note 49, at 32; supra text accompanying note 41 (discussing confirmation
bias).
145 Rebecca Solnit, CassandraAmong the Creeps, HARPER'S MAG., Oct. 2014, at 4.
146 Id. Professor Catharine MacKinnon, the theorist who created the term "sexual harassment"
notes: "I kept track of ... cases of campus sexual abuse over decades; it typically took three to four
women testifying that they had been violated by the same man in the same way to even begin to
make a dent in his denial. That made a woman, for credibility purposes, one-fourth of a person."
Catharine MacKinnon, #MeToo Has Done What the Law Could Not, N.Y. TIMES (Feb. 4, 2018),
https://www. nytimes.com/2o18/02/04/opinion/metoo-law-legal-system.html.
147 See, e.g., SIGMUND FREUD, AN AUTOBIOGRAPHICAL STUDY 62-65 (James Strachey
trans., W. W. Norton & Co. 1963) (1925).
148 Id. at 62.
434 University of Pennsylvania Law Review [Vol. 167: 399

sexual abuse constituted the root cause of his patients' neuroses. 149 Later, however,
Freud abandoned this idea, proclaiming instead that his patients' stories were not
based in actual experience, but instead on fabricated, wishful fantasies that all
women experience.150 Freud's shift from crediting to discrediting women
eventually led him to develop his profoundly influential theory of psychosexual
development.151
For almost a century, conventional psychoanalytic wisdom held that
Freud's shift represented an appropriate course correction-an important
move toward greater accuracy in analyzing his traumatized patients. In the
early 1980s, however, Jeffrey Masson, a former Sanskrit professor who had
subsequently trained as a psychoanalyst and become Projects Director of the
Freud Archives, turned this assumption on its head. Based on correspondence
between Freud and a contemporary, Willhelm Fliess, Masson argued that
Freud did not abandon his belief in his original observation-that girls were
being abused in huge numbers by male relatives-based on factual
evidence.152 Instead, Freud was unable to accept the disturbing truth he had
uncovered; he also may have been unwilling to risk the disapprobation of the
conservative medical establishment. 153 Ultimately, Freud decided to abandon
his original idea54 and create a new theory based on the premise that women's
stories of sexual violence were not fact, but fantasy.155 In the words of
psychiatrist Judith Herman, "[t]he dominant psychological theory of the next
century was founded in the denial of women's reality."156

149 Id.
150 Id. at 63.
151 Id. at 63-64. Freud's theory of psychosexual development rests on the idea that from birth,
human beings possess an instinctual sexual energy (libido) that develops in five stages. According to
Freud, a person who experiences frustration during any one of these developmental stages experiences a
resulting anxiety that can persist into adulthood in the form of neurosis. During the third stage, called
the phallic phase, which occurs between the ages of two and five, a child focuses libidinal energy or sexual
wishes on the opposite sex parent and experiences feelings of jealousy and rivalry toward the same sex
parent. 7 SIGMUND FREUD, Three Essays on the Theory of Sexuality, in THE STANDARD EDITION OF
THE COMPLETE PSYCHOLOGICAL WORKS OF SIGMUND FREUD (James Strachey ed. & trans., 1975).
152 JEFFREY MOUSSAIEFF MASSON, THE ASSAULT ON TRUTH: FREUD'S SUPPRESSION OF
THE SEDUCTION THEORY 107-13 (1984).
153 Id.
154 Id.
155 Id. at 110.
156 HERMAN, supra note 39, at 14. It should be noted that Masson's claim provoked a good deal
of controversy in the psychiatric community, where Freud is still largely revered. See, e.g., Judith
Herman, The Analyst Analyzed, NATION (Mar. 10, 1984), at 293 (reviewing JEFFREY M. MASSON,
THE ASSAULT ON TRUTH: FREUD'S SUPPRESSION OF THE SEDUCTION THEORY (1984))
(arguing that Masson is "right and courageous"); Charles Rycroft, A Case of Hysteria, 31 N.Y. REV.
BOOKS 3 (1984) (reviewing JEFFREY M. MASSON, THE ASSAULT ON TRUTH: FREUD'S
SUPPRESSION OF THE SEDUCTION THEORY (1984)) (accusing Masson of ignoring evidence
contrary to his theory and presenting flimsy evidence to support it); Anthony Storr, Did Freud Have
Clay Feet?, N.Y. TIMES, Feb. 12, 1984, at 3 (reviewing JEFFREY M. MASSON, THE ASSAULT ON
2019] Discounting Women 435

Contemporary culture continues to impart strong lessons about women's

lack of trustworthiness. Our teenagers watch TV shows like Pretty Little Liars,
Don't Trust the Bitch in Apartment 23, and Devious Maids; younger children
watch animated movies like Shark Tale, which features a catchy tune that
describes women as scheming.157 Rap lyrics are full of stories of women
deceiving and taking advantage of men. 158
The same insidious stereotype of women as unreliable-to-hysterical
distorters of the truth has quietly overtaken the justice system, where women
witnesses tend to be disbelieved more than their male counterparts. In one
study in which a group of "credibility raters" assessed the believability of actual
witnesses testifying in trials in a mid-sized Southern city, researchers found
that male witnesses were considered more credible than female witnesses. 159
Similarly, the available evidence indicates that, as a general rule, judges view
women as less credible witnesses and advocates than they do men. 160 And recent
studies show that the police routinely discredit female survivors of intimate
partner abuse. In the 2015 National Domestic Violence Hotline Survey, for
example, a substantial percentage of women reported that the police did not
believe their stories of intimate partner abuse because they were women. 161
In addition, as no end of literary and cultural texts manifest, when women-
such as victims of domestic violence-are burdened with the cultural script of
acting other-than rationally, or permit themselves to succumb to expressions of
emotional intensity, our tendency to discredit them as individuals gains new
momentum.1 62 In a recent study, researchers asked a diverse group of college

TRUTH: FREUD'S SUPPRESSION OF THE SEDUCTION THEORY) (arguing that "[e]verything we

know about [Freud's] character makes Mr. Masson's accusation wildly unlikely").
157 Soraya Chemaly, How We Teach our Kids that Women Are Liars, ROLE REBOOT (Nov. 19,
2013), http://www.rolereboot.org/culture-and-politics/details/2013-ii-how-we-teach-our-kids-that-
women-are-liars [https://perma.cc/3N2E-RCEM].
158 Terri M. Adams & Douglas B. Fuller, The Words Have Changed but the Ideology Remains the
Same: Misogynistic Lyrics in Rap Music, 36 J. BLACK STUD. 938, 945, 948 (2006).
159 Jacklyn E. Nagle, Stanley L. Brodsky & Kaycee Weeter, Gender, Smiling, and Witness
Credibility in Actual Trials, 32 BEHAV. SCI. & L. 195, 195, 203 (2014).
160 Jeannette F. Swent, GenderBias at the Heart ofJustice: An EmpiricalStudy of State Task Forces,
6 S. CAL. REV. L. & WOMEN'S STUD. 1, 61 (1996); see also Marilyn Yarbrough & Crystal Bennett,
Cassandra and the "Sistahs": The Peculiar Treatment of African American Women in the Myth of Women
as Liars, 3 J. GENDER RACE & JUST. 625, 629 (2000)("[W]omen, more than men, are stereotyped
as liars even though men and women are equally adept at telling lies."). It should be noted that
existing data on judicial gender bias in credibility determinations are somewhat outdated; however,
no evidence exists to indicate that the relevant findings have changed in recent years.
161 NATIONAL HOTLINE SURVEY, supra note 106, at 7.
162 "[I]t's also a common view, particularly in many Western patriarchal societies, that
emotionality is at odds with rationality." McKinnon, supra note 8o, at 169. For example, consider just
one of many Internet memes: A young boy asks, "Dad can you explain women's logic?" His father
replies, "You're grounded!" When the boy asks for the reason, the father replies with the non-sequitur:
"Peanut Butter." Image, PINIMG.COM, https://i.pinimg.com/474x/73/6b/43/736b4323b83b92e7
f55b22e0a386ca9.jpg [https://perma.cc/KJH7-AHYY].
436 University of Pennsylvania Law Review [Vol. 167: 399

students to take on the role of mock jurors, and review a condensed version of
a murder trial transcript. The researchers charged the students with making a
preliminary decision as to how they would vote-guilty or not guilty. They
were then asked to deliberate electronically with participants whom they
believed to be their fellow jurors. The other participants, however, were actually
the researchers themselves-an approach designed to ensure that there was
always a single "holdout" on the jury, whose messages would sound increasingly
angry over the course of deliberations. Participants whose holdout was assigned
a clearly male-identified name began doubting their initial opinions; in
contrast, those for whom the holdout was assigned a clearly female name
became significantly more confident in their initial opinions, at a statistically
significant level.163 In sum, the tendency to discredit women because they are
women is deeply embedded in our broader culture-and clearly influences the
way credibility is assessed in the legal system.
People of color, particularly Black people, have the same experience. As many
legal scholars have noted, American courts have a long history of discrediting
African American witnesses on the basis of their blackness. Such discrediting can
occur based on stereotypes that African Americans are less intelligent than are
whites, or that they are untrustworthy and dishonest.164 Based on all of the above,
it stands to reason that black women risk being doubly disbelieved.
Poor people are also vulnerable to stereotypes about their trustworthiness,
as in the earlier example of welfare queens, who cheat the system to take what
is not theirs. Because so many survivors live at the intersection of all three of

163 Jessica M. Salerno & Liana C. Peter-Hagene, One Angry Woman: Anger Expression IncreasesInfluence
for Men, but DecreasesInfluence for Women, During Group Deliberation,39 L. & HUM. BEHAV. 581, S81 (2015).
164 See, e.g., Amanda Carlin, The Courtroom as White Space: Racial Performance as Noncredibility, 63
UCLA L. REV. 450, 467 (2016) (quoting Joseph W. Rand, The Demeanor Gap: Race, Lie Detection, andthe
Jury, 33 CONN. L. REV. 1, 42 (2000)). In one striking study of judicial racial bias, 133 state and local trial
judges from multiple jurisdictions were given an Implicit Association Test in which they were asked to
categorize photos of white and black faces with positive attitude words (like pleasure), or negative
attitude words (like awful), as quickly as possible. As hypothesized, the judges responded consistently
with the general population, associating black with bad and white with good. Next, the judges engaged
in a nonconscious "priming" task, in which the experimenters flashed coded words on participants'
computer screens, too rapidly to be consciously processed. For example, the black prime consisted of
flashed words like dreadlocks, hood, and rap; the control group prime consisted of words like summer,
trust, and stress. After being primed, the judges were asked to make various determinations regarding a
hypothetical case involving two juvenile defendants. Judges with higher implicit bias scores rendered
harsher judgments when primed with the black racial category. See Jeffrey J. Rachlinski, Sheri Johnson,
Andrew J. Wistrich & Chris Guthrie, Does Unconscious RacialBias Affect Trialfudges?, 84 NOTRE DAME
L. REV. 1195, 1198-99 (2009). Similarly, a recent study of 239 federal and state courts found that judges
held strong to moderate implicit biases against both Asians and Jews relative to Caucasians and
Christians, respectively, and that on a scenario-based task, they gave slightly longer prison sentences to
Jewish defendants compared to identical Christian defendants. Justin D. Levinson et al.,Judging Implicit
Bias: A NationalEmpiricalStudy ofJudicialStereotypes, 69 FLA. L. REV. 63, 104 (2017).
2019] Discounting Women 437

these identities-they are poor women of color-these stereotypes feed into

each other to further undermine assumptions about their trustworthiness.165
And as one might expect, a woman who is mentally ill or abusing
substances may experience even further credibility discounts. When a judge
talks to a jury about how to assess credibility, the standard instruction
emphasizes how important it is for witnesses to articulate strong and clear
memories of the events they are relating, as well as their ability under the
particular circumstances to have perceived-to have seen and heard-the
events in question.166 A survivor who has abused substances to cope with her
partner's violence is less likely to meet this standard. So is a survivor
struggling with a mental illness, regardless of whether that illness contributed
to her original vulnerability, or was a consequence of it.
Each of these credibility discounts-story plausibility and individual
trustworthiness-operate in a distinct fashion, but they are not necessarily
independent of each other; in fact, they are often intertwined. As philosopher
Karen Jones explains, "Testifiers who belong to 'suspect' social groups and
who are bearers of strange tales can thus suffer a double disadvantage. They
risk being doubly deauthorized as knowers on account of who they are and
what they claim to know."167
Indeed, a wide array of women may be viewed as untrustworthy because of
who they are-women, Black women, poor women, women who exhibit trauma
symptoms that are easily conflated with a lack of credibility, and women who

165 Carolyn M. West, Violence Against Women by Intimate Relationship Partners,in SOURCEBOOK
ON VIOLENCE AGAINST WOMEN 143, 164-65 (Claire M. Renzetti et al. eds., 2001) (noting that
African-American women are three times as likely as white women to be killed by an intimate
partner). Women receiving public financial assistance are significantly more likely to experience
domestic violence than are other women. Richard M. Tolman & Jody Raphael, A Review of Research
on Welfare and Domestic Violence, 56 J. SOC. ISSUES 655, 663 (2000). Moreover, intimate partner
abuse pushes many women into homelessness. Across the United States, between twenty-two and
fifty-seven percent of homeless women identify domestic violence as the immediate cause.
GOODMAN & EPSTEIN, supra note 123, at 107; INST. FOR CHILDREN & POVERTY, THE HIDDEN
MIGRATION: WHY NEW YORK CITY SHELTERS ARE OVERFLOWING WITH FAMILIES (2002),
https://rhyclearinghouse.acf.hhs.gov/library/2002/hidden-migration-why-new-york-city-shelters-
are-overflowing-families [https://perma.cc/9F6E-XPYE]; Rebekah Levin, Lisa McKean & Jody
Raphael, Pathways to and From Homelessness: Women and Children in Chicago Shelters, CTR. FOR
IMPACT RESEARCH (Jan. 2004), http://www.http://advocatesforadolescentmothers.com/wp-
content/uploads/homelessnessreport.pdf [https://perma.cc/PG8A-H2LA]. In addition, African
American women are thirty-five percent more likely to experience intimate partner violence than are
white women. Women of Color Network, Facts & Stats: Domestic Violence in Communities of Color, DEP'T
OFJUSTICE (June 2006), https://www.doj.state.or.us/wp-content/uploads/2017/08/womenof color_
networkfactsdomesticviolence_2006.pdf [https://perma.cc/6ZU3-6ATL].
166 See, e.g., John L. Kane, Judging Credibility, 33 LITIG. 31, 32 (2007); Model Civil jury
Instructions for the District Courts of the Third Circuit, Rule 1.7 (2010), http://federalevidence.
com/pdf/JuryInst/3dCivCh-3_2oo.pdf [https://perma.cc/69AN-F2QJ].
167 Karen Jones, The Politics of Credibility, in A MIND OF ONE'S OWN: FEMINIST ESSAYS ON
REASON AND OBJECTIVITY 154, 158 (Louise M. Antony & Charlotte Witt eds., 2002).
438 University of Pennsylvania Law Review [Vol. 167: 399

are many or all of the above. This distrust, in turn, creates a broader
hermeneutics of suspicion, through which the listener interprets the substance
of her story. In other words, once a listener has discounted a woman's
trustworthiness, he will be hyperalert for signs of deception, irrationality, or
narrative incompetence in her story. He will tend to magnify inconsistencies
and overlook the ways in which any inconsistencies might be explained away.
In this way, Jones observes, "a low initial trustworthiness rating . .. can give
rise to runaway reductions in the probability assigned to a witness's story."168
Because women survivors tend to spark hermeneutic suspicion, both in terms
of personal trustworthiness and story plausibility, they are particularly
vulnerable to this kind of doubly disadvantaging credibility discount.

II. GATEKEEPER-IMPOSED EXPERIENTIAL DISCOUNTS

The discounts women survivors face are not limited to the credibility arena.
All too frequently, system gatekeepers also discount the importance of women's
actual experiences and of the ways in which the system itself exposes women to
additional harms. Such experiential discounting occurs when, regardless of the
plausibility of a survivor's story and regardless of her personal trustworthiness-
in other words, even when system actors believe her-they nonetheless adopt and
enforce laws and policies that, in practice, revictimize her.169
These issues-credibility discounting and experiential discounting-
cannot be considered in isolation. Such an approach would fail to capture the
way that each relies on and reinforces the other, both in practical reality and
through the personal lens of survivor experience. As Catherine MacKinnon
explains, in the sexual harassment context:

Even when [a woman survivor] was believed, nothing [a male perpetrator]

did to her mattered as much as what would be done to him if his actions
against her were taken seriously. His value outweighed her ... worthlessness.
His career, reputation, mental and emotional serenity and assets counted.
Hers didn't. In some ways, it was even worse to be believed and not have [his
17 0
actions] matter. It meant she didn't matter.

Experiential discounting does not entail total disregard for harms inflicted
on women, just as credibility discounting does not entail total disbelief of
women's stories. Instead, gatekeepers impose experiential discounts when, in
the pursuit of objectively worthy policy goals, they choose to ignore or trivialize

168 Id. at 159.

169 Lynn Hecht Schafran calls this women's "consequential credibility." Lynn Hecht Schafran,
Credibility in the Courts: Why is There a Gender Gap?, 34 JUDGES' J. 5, 40-41 (1995).
170 Catharine A. MacKinnon, #MeToo Has Done What the Law Could Not, N.Y. TIMES (Feb. 4,
2018), https://www.nytimes.com/2o18/o2/o4/opinion/metoo-law-legal-system.html (emphasis added).
2019] Discounting Women 439

the attendant harm to survivors. Women receive the message that system actors
are relatively indifferent to the realities of their lives and the risks that shape
their experiences. For an individual woman survivor, this experiential (or
ontological)171 discounting of the law's impact on her life exponentially
increases the negative power of the credibility discounts she also must face.
The tendency to discount women's experiences permeates our society,
including the social service and justice-based systems to which so many
survivors turn for help in their efforts to be safe. The following examples
illustrate this phenomenon.

A. CriminalJustice System

Despite enormous improvements in the responsiveness of police and

prosecutors to domestic violence over the past several decades,172 the criminal
justice system continues to discount important aspects of women's experiences
and to trivialize some of the harmful consequences that policies focused primarily
on offender accountability often impose on survivors. As one example, we have
known for decades that participation in a criminal prosecution can increase a
woman's risk of retaliatory violence: studies show that twenty to thirty percent
of perpetrators reassault their targets before the criminal court process is over.173
Data also show that women are at greater risk of homicide at the time of
separation from their abusive partners (and prosecution, indeed, creates such
separation).174 It is hardly surprising that a major reason survivors cite for
withholding cooperation from prosecutors is fear of future harm.175
Nonetheless, prosecutors around the country often subpoena, arrest, and even
jail survivors in an effort to ensure that they will testify against their abusive
partners at trial.176 The intent of these government lawyers is far from malicious;

171 This type of discounting could be conceptualized in philosophical terms as "ontological injustice,"
operating alongside the above-described categories of hermeneutic and epistemic injustice.
172 See, e.g., Epstein, supra note 82, at 13-16.
173 See, e.g, Lauren Bennett Cattaneo & Lisa A. Goodman, Risk Factorsfor Reabuse in Intimate Partner
Violence: A Cross-DisciplinaryCriticalReview, 6 TRAUMA, VIOLENCE & ABUSE 141, 143, 159 (2005).
174 Douglas A. Brownridge, Violence Against Women Post-Separation, it AGGRESSION
&

VIOLENT BEHAV. 514, 519 (2006).

175 Lauren Bennett, Lisa A. Goodman & Mary Ann Dutton, Systemic Obstacles to the Criminal
Prosecutionof a BatteringPartner:A Victim Perspective, 14 J. INTERPERSONAL VIOLENCE 761, 768-69
(1999); Sara C. Hare, Intimate Partner Violence: Victims' Opinions About Going to Trial, 25 J. FAM.
VIOLENCE 765, 771 (2010).
176 Thomas L. Kirsch II, Problems in Domestic Violence: Should Victims Be Forced To Participatein
the Prosecution of Their Abusers?, 7 WM. & MARY J. WOMEN & L. 383, 387 (2001); Betty Adams,
Battered Wife Jailed After Refusing To Testify Against Husband, PRESS HERALD (June 3, 2014),
https://www.pressherald.com/2ot4/o6/o3/maine-domestic-violence-victim-jailed-after-refusing-to-
testify/; Domestic Violence Victims Could Be Arrested if They Don't Show Up for Court To Face Accuser,
WSMV.COM (Apr. 25, 2013), http://www.wsmv.com/story/22o815O2/domestic-violence-victims-in-
rutherford-county-could-be-arrested-if-they-dont-show-up-for-court [https://perma.cc/TWVZ-XZEP].
440 University of Pennsylvania Law Review [Vol. 167: 399

they hope to use the power of their office to put an end to intimate partner abuse,
and they believe that mandating victim participation is-regardless of an individual
survivor's own analysis of her situation-the best way to accomplish this goal. But
in the process, the secondary harms visited on victims are too often ignored. As
Professor Jane Stoever notes, "[j]ail sentences for defendants in domestic violence
cases are typically only several days long, and most offenders receive only
probation, but abuse victims have been jailed for contempt for much lengthier
periods for refusing to comply with subpoenas to testify."177 To obtain testimonial
compliance, prosecutors threaten to refer victims to child protection agencies,
where they could risk losing custody of their children, and they institute perjury
prosecutions against women who have recanted prior statements, often obtaining
lengthy jail sentences for survivors. 178 As one example, a 2016 investigation in
Washington County, Tennessee, showed that women were routinely imprisoned
for as long as a week for failing to testify against their abusive partners. 179 In the
words of defense counsel representing one of the women: "I mean, it's kind of
chilling. Here's a woman that called the police, because she needed help and now a
couple months later she gets a voicemail that says now you might be the one that's
going to jail. Think about that."180 The local prosecutor refused to apologize for the
practice, claiming that "I think we were doing the right thing."181

Prosecutorial use of coercive tactics increased in the aftermath of U.S. Supreme Court decisions that
made it far more difficult to engage in the practice of "victimless prosecutions." See Tamara L. Kuennen,
Private Relationships and Public Problems: Applying Principles of Relational Contract Theory to Domestic
Violence, 2010 BYU L. REV. 515, 585-86 (2010).
177 Jane K. Stoever, Parental Abduction and the State Intervention Paradox, 92 WASH. L. REV.
86t, 870-71 (2017).
178 For an extensive compilation of stories of women subjected to such harms, see id.
179 Nate Morabito, Advocates HorrifiedAfter Domestic Violence VictimsJailed in Washington County,
TN, WJHL.COM (Sept. 11, 2016), http://wjhl.com/2016/o9/11/advocates-horrified-after-domestic-
violence-victims-jailed-in-washington-county-tn/ [https://perma.cc/KM36-SEXL].
180 Id.
181 Id. Prosecutorial dismissal of women's risk of harm also can be seen in Honolulu Prosecuting
Attorney Ken Kaneshiro's 2016 decision to restrict access to the city's Family Justice Center shelter to victims
who promised to testify against their abusive partners in a criminal trial. Kaneshiro claimed that the victims
who declined to testify "did not know what's good for them." Rebecca McCray, Jailing the Victim: Is It
Ever Appropriate to Put Someone Behind Bars to Compel Her to Testify Against Her Abuser?, SLATE (July 12,
2017, 12:07 PM), http://www.slate.com/articles/newsandpolitics/trialsanderror/
2017/7/isiteverappropriatetoputanabusevictimin jail-to-compel-her to testify.html.
Honolulu's approach to domestic violence prosecution sends a clear message to survivors: we discount
the realities ofyour safety concerns and your risks of future harm. Unsurprisingly, during the first eight
months the Honolulu shelter was open, sixteen of its twenty beds remained empty. Id. This example
is, of course, an extreme one: no other Family Justice Center has a similar policy. Id. But extreme
examples can offer a window into the less dramatic and more routine discounts women suffer in terms
of their consequential credibility. In October 2015, a Florida judge jailed a victim of domestic violence
who indicated that she would not appear to testify in the criminal prosecution of her abusive partner.
She had endured terrifying violence at her husband's hands: he had strangled her, threatened her with
a kitchen knife, and smashed her head into a microwave. She told the judge that the abuse had caused
her to struggle with depression and anxiety. In addition, her husband was the father of her one-year-
2019] Discounting Women 441

A similar theme sounds in the actions of police officers responding to

domestic violence calls across the country. The 2015 ACLU survey reveals a
serious lack of police concern regarding the harms experienced by survivors:
eighty-three percent of polled service providers reported that their clients
called the police only to find that they "sometimes or often" did not take
allegations of domestic violence seriously.182
The 2015 National Hotline Survey echoes this finding. In the words of
one respondent, "I think [the police] feel that I do not matter, that as an ex-
wife, I have to withstand the harassment and stalking." Another woman put
it this way: "They sympathized with him and said he [just] needed to stay
away from me. Then they pointed me in the direction of [name of city
withheld] and said to call someone when I got there . . . . [They] left me by
the side of the road alone in my car with my daughter and afraid." Yet another
said: "The cops acted as if they did not care . . . . They sat in the drive while
my ex poured gas all over my decks to my home and took what he wanted.
Even though I had an [order of protection] and told them he could not enter
the home."183 Another: "[The police] have threatened to arrest me more than
once. I am the victim! They blame me for taking him back."184
Police officers also use their power to coerce victim testimony at trial. In
the spring of 2018, a police sergeant in Buncome County, North Carolina,
told an advocate, "When I get to a domestic [violence call], if I get a sense
that she's not going to cooperate, I drive away." 185 A minute later he added,
"But when I go to my misdemeanor B&E's [breaking and entering cases], I
stay until I've got all the evidence."186

old daughter, and she was concerned about her ability to support her child if he went to jail and lost his
job. She cried in open court as she explained, "I'm homeless now. I'm living at my parents' house ... I
had to sell everything I own," and added, "I'm just not in a good place right now" The judge responded
by mocking her, saying, "You think you're going to have anxiety now? You haven't even seen anxiety," and
ordered police to handcuff the woman, sending her to jail for three days. Kate Briquelet, Judge Berates
Domestic Violence Victim-and Then Sends Her to Jail, THE DAILY BEAST (Oct. 9, 2015, 1:00 AM),
https://www.thedailybeast.com/judge-berates-domestic-violence-victimand-then-sends-her-to-jail.
182 RESPONSES FROM THE FIELD, supra note 106, at 12.
183 NATIONAL HOTLINE SURVEY, supra note 106, at 6, 10.
184 Id. at to. Additional police coercion may be imposed on women in jurisdictions utilizing
lethality or danger assessment protocols. These protocols are comprised of a series of questions,
posed by police on the scene of a domestic violence call and designed to determine a survivor's risk
of future harm. In situations where this (relatively new) tool indicates "highest risk," the protocol
directs officers to manipulate women into separating from their abusive partner, by refusing to accept
a woman's decision to take no action, or by pressuring an unwilling victim to speak to a National
Domestic Violence Hotline counselor. Margaret Johnson, BalancingLiberty, Dignity, and Safety: The
Impact of Domestic Violence Lethality Screening, 32 CARDOZO L. REV. 519, 536, 566-67 (2010).
Lethality assessment programs are being used in counties in states including Delaware, Florida,
Georgia, Indiana, Maryland, Missouri, and Vermont. Id. at 539-
185 Interview with Kit Gruelle, domestic violence advocate (June 6, 2018).
186 Id.
442 University of Pennsylvania Law Review [Vol. 167: 399

By discounting the importance of survivors' experiences and their risks of

harm, police officers discourage women from seeking police assistance in
subsequent emergency situations. As the ACLU Survey concluded, "Clients
often do not call the police because they have had experiences in the past ...
in which they have received a negative response . . . in which the incident is
minimized, the client is blamed, or the police simply take no action."187 In all
of these ways, the criminal justice system tends to dismiss its policies' effects
on women's lives as relatively inconsequential, at least as compared to their
effects on offender accountability.
In addition, the criminal justice system tends to devalue violence that is
inflicted by an intimate partner as compared to a stranger. A 2005 Department
of Justice report on Family Violence Statistics reveals that seventy-seven
percent of those incarcerated for non-family assaults received sentences that
were longer than two years. 188 In sharp contrast, this was true of only forty-five
percent of those incarcerated for family assault.189 Thus, the criminal justice
system discounts the importance of women's experiences and, further, devalues
the meaning of the harms they suffer at the hands of their partners.

B. Subsidized Housing and Public Shelters

This tendency to discount the impact of laws and policies on the lives of
domestic violence survivors extends well beyond the justice system. The public
housing system provides an important case in point, in part because the
availability of affordable housing is essential to many women's ability to both
escape abuse and to remain safe after leaving an abusive relationship.190 Despite
this fact, substantive discounting of survivors' experience is readily apparent in
the already intense and bureaucratically intimidating struggle for public housing.

187 RESPONSES FROM THE FIELD, supra note 106, at 16.

188 BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FAMILY VIOLENCE
STATISTICS INCLUDING STATISTICS ON STRANGERS AND ACQUAINTANCES 2 (June 2005),
https://www.bjs.gov/content/pub/pdf/fvs.pdf [https://perma.cc/TD25-2HYZ].
189 Similar results were reached in a recent study conducted in Australia, where domestic
violence offenders were compared to those who committed violent crimes outside of a
familial/intimate relationship context. Moreover, domestic violence assaults were less likely to result
in a prison sentence and, if incarcerated, intimate offenders received significantly shorter terms.
Christine E. W. Bond & Samantha Jeffries, Similar Punishment? ComparingSentencing Outcomes in
Domestic and Non-Domestic Violence Cases, 54 BRITISH J. CRIMINOLOGY 849, 849 (2014).
190 Survivors who cannot remain in public housing often are forced to choose between
homelessness and returning to their abusive partners. "'When we ask survivors why they had to stay
[in their violent relationships], one of the top answers is always lack of access to housing,' said Karma
Cottman, executive director of the D.C. Coalition Against Domestic Violence. 'They stay because
they can't afford to go anywhere else."' Elise Schmelzer, Gentrification Eats Away at Shelter Options
for Domestic-Abuse Victims, WASH. POST (July 10, 2016), https://www.washingtonpost.com/local/dc-
politics/gentrification-eats-away-at-shelter-options-for-domestic-abuse-victims/2o16/07/o/0470d
18c-43co-11e6-8856-f26de2537a9dstory.html?utmterm=.ad4ce2d6365a.
2019] Discounting Women 443

At the state and local levels, crime control or nuisance ordinances require
public housing landlords to evict tenants for "disorderly behavior" if, within
a specified time period, three calls are made to 911 about a particular
apartment unit.191 Fifty-nine counties, cities, and other localities have such
ordinances in place today. 192 In 2013, Illinois alone had adopted more than 100
such ordinances;193 in 2014, Pennsylvania had passed thirty seven. 194 The
geographic areas these laws cover include the twenty largest cities in the
country.1 95 A landlord who fails to comply can be fined and have his rental
license suspended. Accordingly, landlords have no discretion in enforcing this
draconian measure-tenants have no realistic opportunity to appeal to their
human empathy. To stay in business, a landlord must evict after three 911
calls.196 To be clear, the underlying goal of these laws is the reduction of crime
and the resulting safety of all residents; any impact on women survivors of
domestic violence is solely incidental.
Despite this fact, these ordinances have a sizable negative impact on
survivors of domestic violence. Thirty-nine of them explicitly include calls to
911 from domestic violence victims as a basis for prohibited activities that can
result in eviction; only four explicitly exclude such calls.197 And who ends up
getting evicted? It's not just the perpetrators; it's the victims, too. The
ordinances make no effort to distinguish between abusers and victims-if a
victim chooses to use 911 emergency services to protect herself and her
children on three or more occasions, she'll lose her home.198
A study conducted by Matthew Desmond and Nicole Valdez in Milwaukee
found that close to one-third of the "excessive" 911 call citations over a two-year
period were based on emergency reports of domestic violence; fifty-seven
percent of these calls resulted in the victim being evicted, and another twenty-

191 PETER EDELMAN, NOT A CRIME TO BE POOR: THE CRIMINALIZATION OF POVERTY IN

AMERICA 135 (2017).
192 Id. at 141.
193 Emily Werth, The Cost ofBeing "Crime Free": Legal andPracticalConsequencesof Crime Free Rental
Housing and Nuisance Property Ordinances, SARGENT SHRIVER NAT'L CTR. ON POVERTY LAW 1 (2013),
http://povertylaw.org/files/docs/cost-of-being-crime-free.pdf [https://perma.cc/K4XE-CFYS].
194 News Release, Executive Director Dierkers Praises Legislators for Shielding Domestic
Violence Victims from Eviction, PA. COAL. AGAINST DOMESTIC VIOLENCE (Oct. 16, 2014),
http://www.peadv.org/Resources/HB1796_PR_10162014.pdf [https://perma.cc/TS8P-MRFB].
195 EDELMAN, supra note 191, at 141.
196 Id.
197 Id.
198 See, e.g., U.S. DEP'T OF HOUS. & URBAN DEV., OFFICE OF GENERAL COUNSEL,
GUIDANCE ON APPLICATION OF FAIR HOUSING ACT STANDARDS TO THE ENFORCEMENT OF
LOCAL NUISANCE AND CRIME-FREE HOUSING ORDINANCES AGAINST VICTIMS OF DOMESTIC
VIOLENCE, OTHER CRIME VICTIMS, AND OTHERS WHO REQUIRE POLICE OR EMERGENCY
SERVICES 4 (2016), https://www.hud.gov/sites/documents/FINALNUISANCEORDGDNCE.PDF
[https://perma.cc/YW5F-SNKL].
444 University of Pennsylvania Law Review [Vol. 167: 399

six percent received formal threats of eviction. 199 Similarly, a 2015 ACLU study
of two upstate New York ordinances found that domestic violence comprised
the largest category of incidents resulting in nuisance enforcement, with
citations frequently resulting in eviction of the victim.200 Peter Edelman
describes the experience of one victim, Rosetta Watson, in St. Louis: "She
called the police several times to ask for protection to keep her safe from her
former boyfriend. They did not protect her and she was attacked by the man,
and then she was literally banished from the city for six months .... "201
Similarly, Lakisha Briggs of Norristown, Pennsylvania, was abused by her
boyfriend, and her adult daughter called the police.202 Before leaving, one of
the officers warned Briggs that this was her first strike. After that warning,
Briggs, who also had a three-year-old daughter, was reluctant to call the police
when her boyfriend beat her up. 203 But one night, he stabbed her in the neck
with a broken ashtray.204 When she regained consciousness she found herself
in a pool of blood, but knew she could not dial 911.205
"The first thing in my mind is let me get out of this house before
somebody call," she says. "I'd rather them find me on the street than find me
at my house like this, because I'm going to get put out if the cops come
here."206 Just as she feared, a neighbor saw her bleeding outside and called the
police.207 Briggs was airlifted to the hospital, and when she returned home

199 Matthew Desmond & Nicole Valdez, Unpolicingthe Urban Poor: Consequences of Third-PartyPolicing
for Inner-City Women, 78 AM. SOC. REV. n7, 132-33 (2012). Racial bias influences police decisions regarding
enforcement of these laws: tenants living in predominantly black Milwaukee neighborhoods were three
times as likely to receive a nuisance citation as women living in predominantly white neighborhoods. Id.
200 ACLU, SILENCED: How NUISANCE ORDINANCES PUNISH CRIME VICTIMS IN NEW
YORK 22-23 (2015), https://www.aclu.org/sites/default/files/field document/equ5-report-nuisance
ord-rel3.pdf [https://perma.cc/7EML-ETV3].
201 EDELMAN, supra note 191, at 143. Nancy Markham had a similar experience in Surprise,
Arizona. After making multiple calls to 911 because of abuse at the hands of her boyfriend, the local
police department pressured her landlord to evict her-even though they had finally arrested her
former partner for his violence against her. Sandra S. Park, With NuisanceLaw, Has "Serve and Protect"
Turned Into "Silence and Evict"?, MSNBC (Mar. 25, 2016), http://www.msnbc.com/msnbc/nuisance-
laws-has-serve-and-protect-turned-silence-and-evict [https://perma.cc/LF9D-TPV2]. It took a federal
lawsuit, filed by the ACLU Women's Rights Project, for the city to repeal the nuisance ordinance. Id.
202 Pam Fessler, For Low-Income Victims, Nuisance Laws Force Ultimatum: Silence or Eviction,
NATIONAL PUBLIC RADIO (June 29, 2016), https://www.npr.org/2o6/o6/29/482615176/for-low-
income-victims-nuisance-laws-force-ultimatum-silence-or-eviction [https://perma.cc/W2RC-ZWZQ.
203 See Complaint at 10, 12, Briggs v. Borough of Norristown, No. 13-02191 (E.D. Pa. Apr. 24, 2013).
204 Id. at 15.
205 See Lakisha Briggs, I Was a Domestic Violence Victim. My Town Wanted Me Evictedfor Calling
911, GUARDIAN, Sept. 11, 2015, https://www.theguardian.com/commentisfree/2o15/sep/11/domestic-
violence-victim-town-wanted-me-evicted-calling-9t.
206 See Fessler, supra note 202.
207 Briggs, supra note 205.
2019 ] Discounting Women 445

several days later, she was evicted from her apartment. 208 The ACLU sued,
and the Norristown law was eventually repealed.209
But similar measures continue to be enacted as local communities try to
get a handle on crime and safety. And despite a series of federal lawsuits
challenging the plainly discriminatory impact of these ordinances, hardly any
of the affected communities have voluntarily created an exception for
domestic violence victims. Nor have they sought out ways to accomplish the
overall goal of crime control without imposing new and additional harms on
survivors, such as barring repeat perpetrators from the building or the
housing complex. Such systemic discounting of women's needs and
experiences is-of course-devastating to survivors of intimate partner
abuse. It is difficult to comprehend how a legal system that takes survivors'
experiences seriously could permit itself to visit on them the casually brutal
choice between emergency police protection and affordable housing.
Such apparent disregard for survivors' risks and needs also exists in the
closely related access-to-shelter context. In 2014, for example, the mayor of
Washington, D.C., requested (for the second time in two years)210 emergency
authority to limit access to shelter for local families. Specifically, the mayor
proposed that applicants be permitted to stay in a public shelter only on a
provisional, two-week basis; during that time caseworkers would contact
applicants' friends and relatives in an effort to assess whether they had any
alternate housing option.211 Those who did would be given twenty-four hours
to vacate the shelter. In the words of the mayor's office: "Our goal is to get
people out of shelters .. . or never into shelters in the first place, even if that
means living with a grandmother, a sister, whatever."212 But such a policy
turns a blind eye to the risks facing domestic violence survivors, where
"whatever" might mean a denial of shelter and being forced to return to the
home of an abusive partner.2 13 Although the mayor ultimately withdrew his
request, 214 a similar rule was again proposed in 2017, as an amendment to the

208 Id.
209 See Fessler, supra note 202.
210 The Homeless Services Reform Amendment Act of 2014: Hearing Before the Washington, D.C.,
Comm. on Human Servs. (D.C. 2014) (statement of Marta Beresin, The Washington Legal Clinic for
the Homeless), available at https://www.legalclinic.org/wp-content/uploads/2018/o9/Testimony-
MB-DHS-oversight-hearing.pdf [https://perma.cc/UMY9-2V6X].
211 Aaron C. Davis, D.C. Mayor Asks for Emergency Legislation to Deal with Surge of Homeless into
Shelters, WASH. POST (Feb. 19, 2014), http://wapo.st/1giNpOH?tid=ssmail&utmterm-.3cabe4e6ed.
212 Id.
213 Patty Mullahy Fugere, There Is a Family Homelessness Crisis and ProvisionalPlacement Is Not
the Answer, HUFFINGTON POST: THE BLOG (Feb. 21, 2014) (updated Apr. 23, 2014),
https://www.huffingtonpost.com/patty-mullahy-fugere/there-is-a-family-homelesb_4827364.html.
214 Aaron C. Davis, Gray Steps Back on Unpopular D.C. Homeless Legislation, WASH. POST (Feb.
25, 2014), https://www.washingtonpost.com/local/dc-politics/gray-steps-back-on-unpopular-d-homeless-
legislation/2014/02/25/803bcf66-9e53-11e3-9ba6-800d1192d08bstory.html?utmterm.e28673d02941.
446 University of Pennsylvania Law Review [Vol. 167: 399

city's Homeless Services Reform Amendment Act, this time requiring

applicants to city shelters to prove, by clear and convincing evidence, that
they had no other housing options.215 Advocates testified, once again, that
victims of domestic violence were "routinely being denied shelter" if their
names were on a current lease with, for example, their abusive partner.2 1 6
After intensive advocacy efforts, a domestic violence exception was added to
the statute. 217 But the reintroduction of shelter laws with such draconian provisions,
year after year, demonstrates a deep-seated tendency to discount the importance of
survivors' lived experiences and to trivialize the harmful impact these policies will
inflict on large numbers of women, in service of other policy priorities.
In sum, even when a woman survivor, seeking help from the criminal
justice, subsidized housing, or public shelter systems, finds that her story of
intimate partner abuse is actually believed, gatekeepers are likely to
communicate some degree of indifference about her experiences, and to
accept with apparent unconcern the harms that laws, policies, and practices
impose on her. Many women experience this substantive, experiential
discounting as directly connected to the credibility discounting they also face.
Together, these discounts create a gauntlet of disbelief and dismissal that
women must overcome in order to be safe from the first-order abuse they
suffer at the hands of their intimate partners.

III. THE IMPACT OF CREDIBILITY DISCOUNTS ON WOMEN

SURVIVORS

Survivors suffer a wide range of credibility and experiential discounts

when they seek emergency help from the police, and when they try to convince
judges to award them a civil protection order, and when they struggle to obtain
a safe place to live, and when they try to get custody of their children. They
may suffer these discounts because their true stories of abuse don't sound
plausible, because they are perceived as personally untrustworthy, or because
their stories just don't matter much to system gatekeepers.
All of this may feel like deja vu for a survivor. Institution-based discounting
closely replicates the dynamics of abuse she endures at home. Perpetrators of
intimate partner violence, like system actors, often discredit both the
plausibility of a survivor's story and her trustworthiness as a truth teller. It is
all too common for a survivor to be subject to a constant barrage of: "No, that's

215 Wash. Legal Clinic for the Homeless, Requiring that Families Show "Clear and Convincing
Evidence" of Homelessness, PUBLIC (Aug. 22, 2017), http://www.publienow.com/view/
F8B8o 4 EF4654FB4D115F7E08715D8867B561EF7B?2017-08-22-22:30:10+01:00-xxx9517 [https://
perma.cc/3H8Y- 7 9WT].
216 Id.
217 D.C. CODE § 4-753.02.a-4 (2018).
2019 ] Discounting Women 447

not what happened"; or "I would never have touched you if you didn't keep
provoking me"; or "You're the only one who makes me this angry."218
Abusive partners often discredit the woman based on her personal
trustworthiness. Frequent comments tend to sound like: "You always
exaggerate"; or "You're hysterical and over-emotional"; or "You're crazy; I
didn't hurt you"; or "No one would believe you. Even I don't believe you."219
Finally, perpetrators often dismiss the weight or consequences of the abuse:
"Why do you always make such a big deal out of everything?"220
In other words, the credibility discounts imposed on a woman by the
justice system and other institutions often echo those imposed by her abusive
partner. These institutional and personal betrayals operate in a vicious cycle,
each compounding the effects of the other. That web can cause women to
doubt their power to remedy their situations and-in more extreme cases-
the veracity of their own experiences.
System actors are not privy to that broader web of experience. A judge
who doubts a survivor's story in court is not likely to be aware that he is
reinforcing other discrediting messages from her abusive partner and from
that partner's defense attorney. An advocate who perceives with indignation
that a survivor's credibility is being discounted in family court may not know
that this experience mirrors an earlier one with a police officer, and yet
another with her public housing landlord. In other words, for system
gatekeepers, it is almost impossible to see the whole picture. But from the
perspective of a survivor, on the receiving end of one credibility discount after
another, these experiences coalesce into a single, interwoven fabric.
Credibility discounts become as pervasive as the air these women breathe.
So what does it mean for a survivor to be caught within a web of
credibility discounting? The consequences include two major categories of
harms: (1) those related to psychological wellbeing; and (2) those related to
accessing justice and safety.

A. Psychological Harms and Institutional Gaslighting

When a survivor undertakes the considerable risks involved in seeking

help, she is looking for resources and safety, to be sure. But she is also hoping

218 See, e.g., HashtagActivism, supra note 62.

219 As survivor and activist Beverly Gooden explains: Such statements are "easy to believe
when it's just the two of you." Id.
220 The National Domestic Violence Hotline website, for example, provides the following
examples of gaslighting: "Your abuser might call you 'too sensitive' or raise a skeptical eyebrow when you
try to complain about his or her behavior, asking you why you would get upset over 'something so dumb."'
What Is Gaslighting2, NAT'L DOMESTIC VIOLENCE HOTLINE (May 29, 2014), http://www.
thehotline.org/what-is-gaslighting/ [https://perma.cc/64K3-PYTA].
448 University of Pennsylvania Law Review [Vol. 167: 399

for validation of the harm she has endured-in other words, to have her
experience credited. As Rebecca Solnit puts it: "To tell a story and have it
and the teller recognized and respected is still one of the best methods we
have of overcoming trauma. "221
Research provides ample evidence for this proposition. When Judith
Herman interviewed twenty-two victims of violent crimes of all sorts on the
meaning of justice, she found that wherever her interview subjects sought
justice, their most important goal was to gain validation or "an acknowledgment
of the basic facts of the crime and an acknowledgment of harm."222
In the domestic violence context, a recent qualitative study of women in a
Massachusetts family court has several women noting the importance of being
credited. As one woman said: "Well, validation [from the court] is huge. It
really is huge. When you've got someone telling you on a constant basis that
you're bad, you're wrong, [you need the courts to say you are right] .... "223
But when the institutions to which the survivor turns for help (often at great
personal risk)224 refuse to acknowledge this harm, and instead echo a woman's
abusive partner by discounting her credibility, the effort to report and remedy
abuse instead works to replicate the denial of a survivor's experience that takes
place at home-only, this time, at an institutional level. And the institutions
involved are those purportedly charged with hearing victims' stories and meting
out justice. It's no wonder that survivors find the experience of systemic
discrediting in our police districts and courthouses particularly crippling.

221 Solnit, supra note 145, at 4.

222 Judith Lewis Herman,Justicefrom the Victim's Perspective, it VIOLENCE AGAINST WOMEN
571, 585 (2005). Herman goes on to explain:

Whether the informants sought resolution through the legal system or through
informal means, their most important object was to gain validation from the
community. This required an acknowledgment of the basic facts of the crime and an
acknowledgment of harm. Although almost all of the informants expressed a wish for
the perpetrator to admit what he had done, the perpetrator's confession was neither
necessary nor sufficient to validate the victim's claim. The validation of so-called
bystanders was of equal or greater importance. Many survivors expressed a wish that
the perpetrator would confess, mainly because they believed that this was the only
evidence that their families or communities would credit. For survivors who had been
ostracized by their immediate families, what generally mattered most was validation
from those closest to them. For others, the most meaningful validation came from
representatives of the wider community or the formal legal authorities.

Id.
223 Ellen Gutowski & Lisa A. Goodman, Intimate Partner Violence Survivors' Subjective
Experiences of Probate and Family Court: A Qualitative Study (2018) (unpublished manuscript)
(on file with authors) [hereinafter Massachusetts Family Court Study].
224 See, e.g., Deborah Epstein, Margret E. Bell & Lisa A. Goodman, TransformingAggressive
ProsecutionPolicies: Prioritizing Victims' Long-Term Safety in the Prosecution of Domestic Violence Cases,
n AM. U. J. GENDER SOC. POL'Y & L. 465, 467-68 (2003).
2019] Discounting Women 449

Survivors suffer a range of harms when they find that their experiences are
repeatedly discredited and invalidated. We conducted a focus group outside of
Boston with twelve advocates who shared extensive experience working with
survivors in a variety of systems. Participants described three distinct outcomes.
First, survivors develop a sense of powerlessness and futility, expressed in
statements such as: "I have taken this enormous risk to share my most
vulnerable experiences in public-and they can't/won't hear/see me. I can't
find the right words to make them help me. There is nothing I can do." This
is a feeling akin to how numerous survivors eventually come to feel in their
abusive relationships; there is nothing they can say or do that will make the
perpetrator of violence hear or really "see" me.22 5
Second, survivors develop a sense of personal worthlessness. "Maybe they
believe my story and still-if no one does anything in response to my story,
then my experience must not have worth or merit. My pain doesn't matter. I
myself must have no value."226 This too replicates abuse dynamics: He has no
empathy for me as a human being. I am worthless in his eyes.
Finally, survivors develop a sense of self-doubt, as the machinery of
credibility discounting lurches into gear: "They are twisting my story, casting
doubt, maybe I didn't remember it right, maybe it didn't happen as I think it
did. I must be crazy."227 This dynamic is well illustrated by the 1944 film

225 Platt, Barton & Freyd describe the experience of institutional betrayal for domestic
violence survivors as follows:

[W]hen this same woman seeks assistance from the police, child protective services
(CPS), or health care providers, she enters a world in which her agency cannot be
taken for granted. She has no personal role with respect to decisionmaking by police,
CPS, or the hospital and so is particularly vulnerable to objectification or betrayal....
When these institutions betray victims of domestic violence, the 'secondary trauma'
from this experience can amplify the feelings of helplessness and loss of control
elicited by abuse . . . . Betrayal in these situations may be more abstract than the
betrayal by an intimate partner. But the violations of promises implied by their
standing in the community-the promise to protect, or heal, or provide for children's
welfare-are no less devastating than a partner's betrayal.

Melissa Platt, Jocelyn Barton & Jennifer J. Freyd, A Betrayal Trauma Perspective on Domestic
Violence, in VIOLENCE AGAINST WOMEN IN FAMILIES AND RELATIONSHIPS: VICTIMIZATION
AND THE COMMUNITY RESPONSE 185, 201-02 (Evan Stark & Eve S. Buzawa eds., 2009).
226 In the Massachusetts Family Court Study, one participant described her experience of betrayal
by the family court judge: "You think that somebody's coming, is going to enter the picture that will help
you. You're so desperate and when you're let down, it's. And I you know, there's some that are like, 'I don't
even want to live anymore. I don't want to live anymore."' Massachusetts Family Court Study, supra note 223.
227 The National Domestic Violence Hotline website warns survivors to pay attention to this
sort of dynamic:

"You're crazy-that never happened."

"Are you sure? You tend to have a bad memory."

450 University of Pennsylvania Law Review [Vol. 167: 399

Gaslight,228 in which a man manipulates his wife's routine experiences in a

concentrated effort to create opportunities to discredit her and convince her
that she is insane. He does this so effectively that she eventually comes to
doubt her own perceptions and memory, and ultimately accepts his story that
she is delusional and mentally unsound.229
Abusive men gaslight their women partners when they express love and
affection on the heels of a violent episode, or deny that certain promises or
commitments were ever made, or simply deny that events took place. Over
time, these small incidents build until, like the wife in Gaslight, survivors may
come to doubt their own memory, perception, and experience.230
Judy Herman explains:

After every atrocity one can expect to hear the same predictable apologies: it
never happened; the victim lies; the victim exaggerates; the victim brought
it on herself; and in any case it is time to forget the past and move on. The
more powerful the perpetrator, the greater is his prerogative to name and
deny reality, and the more completely his arguments prevail.231

A quote from the Massachusetts Family Court study illustrates this

phenomenon:

It's always that you're overreacting, you're too emotional. He'd do something
like the night I woke up with him with his hands around my neck and I was
like, "What are you doing?" I start crying, and he started laughing. And he
said, "I was dreaming." ... "I wasn't going to do anything. I was just

"It's all in your head."

Does your partner repeatedly say things like this to you? Do you often start
questioning your own perception of reality, even your own sanity, within your
relationship? If so, your partner may be using what mental health professionals call
"gaslighting."

Gaslighting typically happens very gradually in a relationship; in fact, the abusive

partner's actions may seem harmless at first. Over time, however, these abusive
patterns continue and a victim . . . can lose all sense of what is actually happening.
Then they start relying on the abusive partner more and more to define reality, which
creates a very difficult situation to escape.

What is Gaslighting2, NAT'L DOMESTIC VIOLENCE HOTLINE (May 29, 2014),

http://www.thehotline.org/2o14/o5/29/what-is-gaslighting/ [https://perma.cc/6 4 K3-PYTA].
228 The film is based on a 1938 Patrick Hamilton play of the same name, Gaslight. GASLIGHT
(Metro-Goldwin-Mayer 1944).
229 Id.
230 Darlene Lancer, How To Know if You're a Victim of Gaslighting, PSYCHOL. TODAY (Jan. 13, 2018),
https://www.psychologytoday.com/blog/toxic-relationships/2nt8ot/how-know-if-youre-victim-gaslighting.
231 HERMAN, supra note 39, at 8.
2019] Discounting Women 451

dreaming." He was laughing, and then he says, "Stop overreacting. I wouldn't

hurt you. Stop overreacting." And I would believe that I was overreacting:
Right?. [Maybe] he didn't really hurt me. I mean really?232

As one of the first author's clients put it:

He found my most vulnerable point, a tiny kernel of insecurity in my soul,

and he exploited it to trap me in a painfully confusing state of nearly total
self-doubt. I spent more than a year working so hard to regain trust in my
own perceptions and my own humanity. But now I find that the legal system
doubts me too, even as I share my more painful and personal story. I get hurt
again and again. It is painfully confusing and I find that it has caused a
significant regression in my overall healing.233

These individual experiences are reinforced by the institutional

gaslighting women experience in the form of system-based credibility
discounts and experiential trivialization. When our official bodies of justice
and law enforcement effectively collaborate in the same patterns utilized by
perpetrators of abuse, survivors may be even more likely to doubt their own
abilities to perceive reality and understand their own lives.

B. Harms Related to Access to Justice and Safety

The sense of institutional gaslighting that commonly accompanies the

progress of abuse claims through the justice system has immediate and baleful
consequences for survivors: the system itself becomes an impediment to, rather
than a conduit toward, justice. Indeed, credibility discounts are analogous to other,
more tangible obstacles that are already all too familiar to those who work in the
domestic violence field, such as economic dependence, isolation, and fear.
First, as we've already seen, credibility discounting may discourage
women from continuing to pursue justice or other forms of support. Having
their claims met with system-wide denial and disbelief gives women ample
cause to distrust, and then possibly avoid, the institutions ostensibly there to
help them.234 As the Gender Bias Study of the Court System in

232 Massachusetts Family Court Study, supra note 223.

233 Communication from client to Deborah Epstein (July 28, 2017).
234 Institutional betrayal occurs when an institution causes harm to an individual who trusts or
depends upon that institution. Carly Parnitzke Smith & Jennifer J. Freyd, Institutional Betrayal, 69 AM.
PSYCHOLOGIST 575, 575 (2014). The secondary victimization of women seeking legal services in the
aftermath of interpersonal violence is described by researcher Rebecca Campbell, who found that when
survivors reach out for help, often at a time of great vulnerability and need, "they place a great deal of trust
in the legal, medical, and mental health systems as they risk disbelief, blame, and refusals of help." Rebecca
Campbell, The Psychological Impact of Rape Victims' Experiences with the Legal, Medical, and Mental Health
Systems, 63 AM. PSYCHOLOGIST 702, 703 (2008); see also Platt et al., supra note 225, at 202; Heidi
Grasswick, Epistemic Injustice in Science, in ROUTLEDGE HANDBOOK, supra note 8o, at 313.
4S2 University of Pennsylvania Law Review [Vol. 167: 399

Massachusetts explains: "The tendency to doubt the testimony of domestic

violence victims and to 'blame' them for their predicament not only hampers
the court's ability to provide victims with the protection they deserve, it also
has a chilling effect on the victims' willingness to seek relief."235
A woman in the Massachusetts Family Court study captured this fatalistic
process in heartbreaking detail:

[The court] didn't believe [the abuse] ... so I felt like it didn't matter ....
The way my case was handled, I am very afraid of [the government in] this
state now .... I'm so afraid of all he needs to do is just file a motion and
bang! He'll get, he'll prove me wrong, you know, I'll get discredited again. So
I just always keep a watchful eye. 23 6

Perhaps most perniciously, each individual woman's experience can have a

large-scale chilling effect. As one advocate described it, "A judge discredits one
woman, and it's like a bomb that goes off in the community, affecting a hundred
women. Within many communities, these stories spread like wildfire."237
A woman in the Massachusetts Family Court study voiced much the same
criticism:

[My advice to other women is:] Just don't say anything about it. The way the
system is now . . . you've got to talk to your priest, talk to your family, tell
them your story of woe and you know, the fact that you've been abused. Have
the support, get therapy if you need therapy, do talk to them. But don't, don't,
don't bring it into the courtroom, because . .. [the judge will think] 'oh, that
couldn't have happened to you.'238

Such advice-editing one's speech so that it includes only what the

listener is ready or able to hear-is described in the philosophy literature as
"testimonial smothering."239
In the 2015 National Domestic Violence Hotline study,240 both women
who had called the police and those who hadn't shared a strong reluctance to
turn to law enforcement for help. One in four women reported that they
would not call the police in future, and more than half said doing so would

235 FINAL REPORT OF THE PENNSYLVANIA SUPREME COURT COMMITTEE ON RACIAL

&

GENDER BIAS IN THE JUSTICE SYSTEM 405 (2003).

236 Massachusetts Family Court Study, supra note 223. In addition, women who do not receive the
support they need from law enforcement are less likely to turn to law enforcement in the future. See
Ruth E. Fleury et al., "Why Don't They Just Call the Cops?": Reasonsfor DifferentialPolice ContactAmong
Women with Abusive Partners, 13 VIOLENCE & VICTIMS 333, 342 (1998).
237 Interview with Ronit Barkai, Assistant Dir., Transition House (Dec. 20, 2017).
238 Massachusetts Family Court Study, supra note 223.
239 Dotson, supra note 112, at 249.
240 NATIONAL HOTLINE SURVEY, supra note 106, at 9.
2019] Discounting Women 453

make things worse.2 4 1 Why? Two-thirds or more said they were afraid the
police would not believe them-or would do nothing, if they called.242
Credibility discounts and experiential trivialization harm women in an
abundance of ways-up to and including the supremely destabilizing process
of prompting women to question the truth of their own experience. Women
are devalued and gaslighted from every direction, discouraging them from
continuing to seek systemic support. Ripple effects discourage the broader
community of women from seeking the help they need. And our entire society
suffers from the failure to fully understand, credit, and value a substantial
portion of the human experience. Together, these harms operate to form a
formidable obstacle to women's healing, safety, and ability to obtain justice.

IV. MOVING FORWARD: INITIAL STEPS TOWARD ERADICATING

CREDIBILITY DISCOUNTS IN THE JUSTICE SYSTEM

At this point, we have a fairly comprehensive sense of how the justice system
and influential actors in related social service networks unfairly discredit women
and their stories of abuse, and devalue their most difficult experiences. How can
we recalibrate these core institutions to tear down the gauntlet of doubt, disbelief,
and dismissal women face in their efforts to be safe and achieve justice?
Several forms of credibility discounting may be amenable to fairly
straightforward interventions-specifically, those that derive from listeners'
failure to understand a woman's experience of intimate partner violence. For
example, gatekeepers within the justice system often lack information about the
effects of violence-based neurological and psychological trauma on information
processing and memory, about the way that potent courtroom triggers can affect
witness demeanor, and about the ways survivors understand their options and
prioritize their harms.243 The best way to cure these knowledge gaps is-of
course-improved understanding. Intensive training could, in theory, allow
individual judges, police officers, prosecutors, clerks, and social service providers
to better understand the medical, mental health, and experiential correlates of
domestic violence. Such education should help to eradicate those credibility
discounts that are rooted in incomplete understandings.
A cautionary note, however, is in order here. For decades, antidomestic
violence activists have engaged in intensive judicial training efforts
throughout the country. Some individuals have absorbed this learning and are
far more adept at avoiding knowledge-based pitfalls in assessing survivor
credibility. For others, however, knowledge gaps persist despite exposure to

241 Id. at 5.
242 Id. at 4.
243 See supra text accompanying notes 19-95.
454 University of Pennsylvania Law Review [Vol. 167: 399

high quality training, raising doubts that training alone may be enough.
Training must be accompanied by a genuine commitment to absorbing new
and sometimes complex understandings about the world.244
Other forms of credibility discounting described above-particularly those
rooted in negative stereotypes and bias-are more resistant to change and may
require a more complex set of interventions. The cultural assumption that
women tend to be improperly motivated by an outsized concern for financial,
material, or child custodial gain-and the related assumption that women
simply lack full capacity as truthtellers-are longstanding and deeply held.245
Regardless of the type of credibility discount in question, change will not come
easily; it will require a combination of motivation, awareness, and effort. The
responsibility here lies with the listening audience-justice and social service
system gatekeepers-to intentionally, consciously shift their assumptions. In
Fricker's words, the listener must adopt "an alertness or sensitivity to the possibility
that the difficulty one's [witness] is having as she tries to render something
communicatively intelligible is due not to its being [a] nonsense or her being a fool,
but rather to some sort of gap in [the existing interpretive] resources."246
The crucial first step is to shift away from an automatic, uninformed
disbelief of women's stories-to begin, in other words, to distrust one's own
distrust. Philosopher Karen Jones proposes the imposition of a "self-distrust
rule": gatekeepers should allow "the presumption against . . . believing an
apparently untrustworthy witness [to] be rebutted when it is reasonable to
distrust one's own distrust or [one's own] judgments of implausibility."247

244 These conclusions are based on the first author's extensive experience in conducting
trainings with judges, police officers, and prosecutors, as well as numerous conversations with other
trainers in the field of intimate partner violence.
245 See supra text accompanying notes 112-168. A central challenge here is that many system
gatekeepers are unaware of the gender-based stereotypes that are, in fact, shaping their perceptions and
decisions. As long as these biases remain unconscious, change is unlikely. Psychologists interested in
challenging unconscious prejudicial perceptions, also called "implicit biases," have shown that participants
who develop both a strong negative attitude toward prejudice and a strong belief that they themselves are
indeed prejudiced, are able to reduce the manifestations of their implicit bias. Jack Glaser & Eric D.
Knowles, Implicit Motivation to Control Prejudice, 44 J. EXPERIMENTAL SOC. PSYCHOL. 164, 164 (2007).
One of the most prominent and well-researched approaches to bias reduction is called the "prejudice habit-
breaking intervention." Patricia G. Devine et al., Long-Term Reduction in Implicit Race Bias: A Prejudice
Habit-BreakingIntervention, 48 J. EXPERIMENTAL SOC. PSYCHOL. 1267, 1267 (2012). Once participants
achieve awareness of their own biases and of the damage such biases can cause, they use cognitive strategies
to accomplish behavioral change, such as stereotype replacement, perspective-taking, and counter-
stereotypic imaging. One notable study based on such strategies demonstrated that habit-breaking
interventions produced long-term changes in key outcomes related to implicit racial bias, increased concern
about discrimination, and greater reported beliefs that there could be bias present in participants' thoughts,
feelings, and behaviors. These changes endured two months following the intervention. Id.
246 FRICKER, supra note 49, at 169.
247 Jones, supra note 167, at 164.
2019 ] Discounting Women 455

Let us be clear: We are in no way arguing that by distrusting one's

instincts to distrust a survivor, state actors must go to the other extreme and
automatically credit all survivor stories. Instead, system actors need only
resist the reflexive presumption against crediting women's stories, make an
effort to avoid false assumptions, overcome hermeneutic gaps, and open their
minds to accepting a broader range of stories and storytellers. We might call
this process one of cultivating a capacity for "virtuous listening."248
System gatekeepers can build this openness into their traditional
approaches to assessing credibility. Contributing factors such as the internal
and external consistency of story, as well as witness demeanor, can easily
expand to accommodate new understandings. For example, a judge who
notices temporal gaps in a survivor's story can resist the urge to automatically
discount her credibility. Instead, the judge can ask follow up questions in an
effort to obtain more concrete factual information and avoid making
unjustified assumptions. Such questions might include:

" What kinds of injuries did you sustain?

" Did you ever feel unable to breathe for any period of time?

Additional questions might focus on obtaining information about the

impact of trauma on the witness. For example:

" Are you able to remember the full story of what happened, from
beginning to end?
" It's fine if you can't tell me what happened in complete detail; just
tell me any specific part of this experience that you do remember.
" How would you describe your ability to remember what happened
here? Do you remember some pieces, like visual images, smells,
sounds, or anything like that? Tell me about those.
" Is your memory of what happened consistent over time? How does
it change?
" Is this a good or a bad day for your memory of what happened? Do
you sometimes remember more or less than what you've been able to
recall today?
" Is your memory of what happened similar to or different from your
memory of other events in your life? How so?

A gatekeeper listening to a woman describe her experience of abuse with

either a flat affect or a tone overwhelmed with hysteria or fury might ask:

* I notice you seem completely calm right now. Does that reflect how
you felt at the time of the events you're describing?

248 Jose Medina, Varieties of HermeneuticalInjustice, in ROUTLEDGE HANDBOOK, supra note 80, at 48.
4S6 University of Pennsylvania Law Review [Vol. 167: 399

* (If not): What do you think explains the difference?

or:

* I notice you seem extremely upset/angry right now. Can you help me
understand what you're feeling, and why?

When receiving testimony focused on psychological, rather than physical

abuse, listeners can use a prompt along these lines:

* You've talked about the psychological harm you experienced in your

relationship. Was there ever physical violence? Can you help me
understand why you have focused primarily on the emotional aspects
of your experience?
When suspecting that a woman is improperly motivated by a desire to
access housing/shelter, or to gain an advantage in a custody case:

* You've spent a lot of time explaining that you need to have a safe
place to live. Can you help me understand why you've focused more
on this issue than you have on the violence you've described?
* I see that you filed a permanent custody case a few weeks ago. Can you
help me understand why you have filed your protection order case
now? I need you to explain to me why you didn't file this case first.

To help counter the more general tendency to discredit women as women,

a judge might take the issue on directly:

* One of the most basic things a judge has to do is to decide whose

story to believe. In this case, like so many others, each of you is
telling me a different story. Can you help me see the reasons I should
credit, or believe, your side of the story, as well as the reasons I
should not credit the story told by the other party?

The judge may ultimately find a woman's story implausible, or find her
personally untrustworthy. But by engaging in a systematic reorientation of
their beliefs, judges can begin to reverse unfair and automatic presumptions
of distrust and thus avoid inflicting testimonial and hermeneutic injustice.
In addition, in cases where a judge or other system gatekeeper concludes that a
survivor is, indeed, telling the truth, the gatekeeper should explicitly communicate
that to her. In light of the frequency with which women face credibility discounts
and the psychological harm such discounts impose, a counter-message of belief
and support (where warranted) can be deeply cathartic.249

249 See supra text accompanying notes 218-223. Being believed is critical to a survivors' ability
to heal. A judge's explicit statement that a survivor is credible can serve as a stark counter narrative
2019 ] Discounting Women 4S7

And judges must be held accountable for instituting such changes. Court
watch programs should expand to include observations about individual judicial
efforts (and failures) to look beyond surface indicators of credibility and ask
questions targeted at more accurate assessments. Court watch reports, shared with
the local judiciary and made available to the public, would create much-needed
pressure to follow through with a change in existing credibility assessment tools.
Still, experience has taught us that judicial training has its limits;
accordingly, suggestions for changing gatekeeper behavior are not enough.
Reform efforts also must focus on improving survivors' access to powerful
forms of corroborative evidence. The story of White House staff secretary
Rob Porter serves as a potent reminder that a picture-there, one that showed
his ex-wife's black eye-can dramatically reduce the initial credibility
discounting imposed on women's stories of abuse.250 But survivors often lack
such evidence. Many perpetrators routinely look through their targeted
victim's phones, deleting any incriminating photos, texts, or voice mails that
are stored there. Many women are afraid to maintain such evidence in the
first instance, due to fear that discovery will lead to further abuse.
Recent technological innovations have created safe spaces for women
seeking to maintain corroborative evidence. The SmartSafe+ mobile app,
developed by the Domestic Violence Resource Centre in Victoria, Australia,
enables survivors to create an online diary containing written, photographic,
video, and audio entries that are stored on a cloud account, rather than on
their phones.21 It also contains guidance about the most important forms of
corroborative evidence that can be useful in a courtroom.22 On the phone
itself, the app looks like a routine news feed. It can be downloaded, free of
charge, at domestic violence advocacy organizations, where service providers
have been trained to ascertain whether a survivor's phone is being monitored
and ensure that the download cannot be detected.253
Efforts also are underway to develop online programs that use plain language
to improve survivor access to justice.254 Such efforts could be expanded to educate

to her abusive experiences, reinforcing the validity of her own perceptions and helping to restore
the sense of self-worth she may have lost.
250 See, e.g., Maggie Haberman & Katie Rogers, Rob Porter, White House Aide, Resigns After
Accusations of Abuse, N.Y. TIMES (Feb. 7, 2018), https://www.nytimes.com/2O18/o2/o7/us/politics/rob-
porter-resigns-abuse-white-house-staff-secretary.html.
251 Family Violence App Wins Inaugural Premier's iAward, CIVIL VOICES (June 30, 2016)
https://probonoaustralia.com.au/news/2o16/o6/family-violence-app-wins-inaugural-premiers-iaward/
[https://perma.cc/3PV9-SL4X].
252 See, e.g., SmartSafe+ Mobile App, https://www.youtube.com/watch?v=o9tdxErinww (last
visited Oct. 16, 2018).
253 Id.
254 Brigitte Lewis, Lisa Harris & Georgina Heydon, The Conversation We Need to Have: Victoria
Has Made Progress on Tackling Domestic Violence, But There Is Still Much to Be Done, ASIA & PAC.
458 University of Pennsylvania Law Review [Vol. 167: 399

survivors about the importance of focusing courtroom storytelling around

applicable legal standards. Community education focused on storytelling could
prompt women to highlight their experiences of physical harm, for example,
helping them to focus on what is most important for their legal case, rather than
what might be most emotionally salient to them on a personal level. In addition,
online programs and in-person advocates could help women think through how
to effectively communicate how trauma might be impairing their ability to
effectively tell their story in court, or to any system gatekeeper.
Together, these initial reforms could have a substantial individual and
institutional impact, with a concomitant diminution in discounting women's
credibility. But, as noted above, two prerequisite conditions-whether in
reducing the "willful interpretive gap" in understanding women's experiences,
in eradicating cultural stereotypes of women as inherent untrustworthy, or in
taking women's experiences seriously-are the acknowledgement ofgender-based
bias, and the will to change.
Progress is possible. The #MeToo moment represents the beginning of a shift
in cultural understanding and good will. The floodgate of stories from blue collar
workers to Hollywood A-listers has forced society to face the realities
encountered by so many women in the American workplace. Similarly, the
#WhyIStayed campaign brought into sharp relief the ways that women are often
trapped in abusive relationships. And the January 2018 sentencing hearing in the
criminal prosecution of Larry Nassar, a sports therapist at Michigan State
University who sexually assaulted more than 150 female students over two
decades, raised national awareness about women's experiences of sexual assault.255
Perhaps most importantly, the Nassar case represents an initial effort to
break crucial barriers directly related to credibility discounting. The women
Nassar exploited told the court and the wider world, explicitly and in painful
detail, their stories of being discredited by the institutions ostensibly
designed to help them. Over 150 women from Michigan State University
("MSU") came forward with story after story of how they

told MSU administrators, explicitly and more than once, that Nassar was
sexually abusing them during medical appointments. [The administrators]
listened to women describe the rubbing back and forth, the digital
penetration that sometimes lasted 15 minutes, the ungloved hands. But when

POL'Y SOC'Y (Sept. 6, 2016), http://www.policyforum.net/the-conversation-we-need-to-have/

[https://perma.cc/5AQA-69 7Z].
255 Caroline Kitchener, Larry Nassar and the Impulse to Doubt Female Pain, ATLANTIC (Jan. 23, 2018),
https://www.theatlantfc.com/health/archive/2oi8/ol/Iarry-nassar-and-the-impulse-to-doubt-female-pain/55ti98/.
2019] Discounting Women 459

those women said there was a problem-that this didn't feel right, that they
were hurt-the administratorsdidn't believe them. 256

Instead, school administrators consistently discounted the credibility of

Nassar's victims, telling them: "He's an Olympic doctor"; or "No way"; or
"[You] must be misunderstanding what was going on."257 When asked about
the women's reports of abuse, the university's Title IX investigator, Kristine
Moore, said "the women likely did not understand the 'nuanced difference'
between proper medical procedure and sexual abuse."258
The sentencing hearing in this case was a groundbreaking opportunity for
women to share both their experiences of sexual assault and, in painful detail,
their experiences of credibility discounting. The seven days of hearings were
cathartic for the survivors; they also shone a light on the institutional
gaslighting that women routinely experience.259 It is time to build on the
momentum of this new awareness and take concrete steps to implement
meaningful reform in the justice and social service systems.

CONCLUSION

Women experience credibility discounts in their homes and in the systems

they turn to for help. As the torrent of #MeToo stories have made clear, these
same discounts pervade workplaces where women are sexually harassed. The
Larry Nassar case further shows that these discounts are rampant among campus
administrators responsible for handling sexual assaults. The routine experience
of credibility discounting indeed is an integral part of male abuses of power,
making those experiences far more painful and difficult for women to surmount.
But assaults on women's credibility also exist independently of those
abusive contexts. In fact, women routinely face credibility discounting in
multiple spheres of their lives. As we have worked on this essay, we've started
to notice credibility discounting in our own lives everywhere we turn. When
we've talked to colleagues and friends about this project, they too reliably
respond with a story of their own, typically from the past few days.
For example, one colleague-an extremely well-known legal theorist-
exclaimed, "That happens to me, all the time!"260 She told us the story of a
dinner party she had just attended, where the conversation turned to the
question of who would succeed to the presidency if Donald Trump, Mike
Pence, and Paul Ryan were all somehow removed from office. Our colleague

256 Id. (emphasis added).

257 Id.
258 Id.
259 Sophie Gilbert, The Transformative Justice of Judge Aquilina, ATLANTIC (Jan. 25, 2018),
https://www.theatlantic.com/entertainment/archive/20i8/ol/judge-rosemarie-aquilina-larry-nassar/55462/.
260 Thanks to Professor Robin West for providing us with this story.
46o University of Pennsylvania Law Review [Vol. 167: 399

(a woman) volunteered that she'd been thinking about this quite a bit, and
that the next person in line was Orrin Hatch-the President Pro Tempore of
the Senate. The other guests responded with deep skepticism: "That can't be
right," etc. She insisted that she was certain, but she was ignored. Several
guests pulled out their phones and started to Google the question; others
brainstormed possibilities among themselves. Eventually, the group
concluded that the next in line was . .. Orrin Hatch.261 No one acknowledged
that our colleague had ever even suggested this answer. Not only was there
no apology for doubting her; it was as though she had never spoken at all.
Other friends and colleagues shared experiences where they reported
unusual physical symptoms to male medical professionals. They were concerned,
in advance, that they might be dismissed as "hysterical" or as exaggerating their
experiences, and, in fact, they often were told that the problem was likely "all in
their heads."262 Gender-based credibility discounting is a serious concern in the
medical field: among emergency room patients complaining of abdominal pain,
women are thirteen to twenty-five percent less likely than men to receive high-
strength "opioid" pain medication; in addition, women wait an average of
sixteen minutes longer than men to receive treatment.2 63
Indeed, credibility discounting stands on its own as an essential aspect of
the female experience. Doubt, skepticism, and trivializing are familiar
phenomena to women. In other words, credibility discounting and
experiential trivializing are distinct injuries women experience, as part of,
and in addition to, other forms of gender-based, discriminatory harms.
It is time for a credibility-discounting #MeToo movement. Women need to
come forward in massive numbers to tell their stories of discounts based on

261 This story has a sharp ironic edge. Orrin Hatch took a leading role in the Clarence Thomas
confirmation hearings before the Senate Judiciary Committee. See, e.g., Thomas HearingDay i, Part
i, C-SPAN, at 48:37-57:02 (Oct. 12, 1991), https://www.c-span.org/video/?21974-1/thomas-hearing-
day-i-part-1. Reflecting on these hearings nearly twenty years later, in an interview with CNN,
Hatch reasserted his view that Anita Hill fabricated her story about Thomas' harassment, but "talked
herself into believing it." Hatch explains:

I believe that Anita Hill was an excellent witness. I think she actually believed, and
talked herself into believing, what she said. There was a sexual harasser at that time,
according to the sources I have, and he was her supervisor. He just wasn't Clarence
Thomas. And I think she transposed that to where she believed it ....

Why Ask for Anita Hill's Apology Now?, CNN (Oct. 20, 2010), https://www.youtube.com/
watch?v=60g0LRu02SQ.
262 For a more in-depth look at this type of credibility discount, see Jennifer Brea, They Told
Me My Illness Was All in My Head. Was It Because I'm a Woman?, BOS. GLOBE (Dec. 27, 2017),
https://www.bostonglobe.com/magazine/2017/12/27/they-told-illness-was-all-head-was-because-woman/
47zuihgBfZqPdNe7S40hSJ/story.html.
263 Esther H. Chen et al., Gender Disparity in Analgesic Treatment of Emergency Department
Patients with Acute Abdominal Pain, 15 ACAD. EMERGENCY MED. 414, 414 (2008).
2019] Discounting Women 461

story plausibility and storyteller trustworthiness, as well as ways in which their

experiences have been minimized and dismissed, in an effort to force society to
see with clarity this distinct form of gender-based harm.264 And perhaps once
the scale of this injustice is made manifest, we can, at long last, enact a body of
genuine institutional remedies, so that women already victimized by abuse,
sexual assault, and harassment need not fear that the legal system and the
broader culture is set up to perpetuate, rather than alleviate, their harms.

264 Playwright Timberlake Wertenbaker puts it well:

What the #MeToo moment is besides sexual harassment is the end of women being quiet. And
that is almost more important-that is, the ability and the right of women to speak up about
what's happened to them or what they think in general, without being told to shut up I hope
that's what lasts forever."

Nelson Pressley, Second Women's Voices Theater Festival Arrives as #MeToo Is in the
Spotlight, WASH. POST (Jan. 4, 20t8), https://www.washingtonpost.com/entertainment/
theater-dance/second-womens-voices-theater-festival-arrives-in-metoo/2ot8/o/o4/bfadeco8-
e66e-tte 7 -833f-155031558ff4_story.html?utmterm=.fed8f623d01b.
* * * *
*