Wednesday, November 7, 2018
Sherry Colb, What Does #BelieveWomen Mean?, Verdict, Justia
As the #MeToo movement gathered steam, exposing many long-ignored instances of sexual misconduct, other hashtags followed in its wake. One of these is #BelieveWomen. In this column, I will analyze some ways of understanding #BelieveWomen and suggest that properly understood, it can provide us with a better way to approach not only women but anyone who brings disfavored messages to our doorstep.
What Does “Believe Women” Mean?
The #BelieveWomen hashtag responds to a very old and longstanding prejudice. The prejudice held (and, to some extent, still holds) that when women say that they were raped, there is a good chance that they are lying. Seventeenth century English jurist Lord Chief Justice Matthew Hale said “[rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Well into the second half of the twentieth century, Hale’s concern about women’s false rape accusations distorted the process of adjudicating rape claims in criminal courts.
Judges, for instance, gave juries special instructions cautioning them about the danger of lying rape victims and the need to be extra skeptical of their testimony. Courts often required corroborating evidence as well, even though witnesses who testified about other crimes required no similar corroboration. As Susan Estrich put it in her 1988 book, Real Rape, the law had difficulty believing women who came forward to complain of rape. The law accordingly placed stumbling blocks in the path of prosecution and conviction, including the special cautionary instruction and the need for corroboration.
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So What Would It Mean to Believe All Women?
If we acknowledge that women sometimes bring false accusations, does that mean we should believe only some women but not all women? We can still believe all women, so long as we make sure to follow up with other potential evidence sources before convicting the defendant of rape.