General Practice, Solo & Small Firm DivisionBest of ABA Sections
Credibility in the Courts: Why Is There a Gender Gap?
Lynn Hecht Schafran
This article is about the credibility of women in the justice system.
To begin, I would like each reader to make a decision in a Wisconsin case that came to my attention. Imagine that you are an employer. There has been an incident of sexual harassment at your court or law firm, and now you must decide what, if any, disciplinary measures should be taken against the harasser. In brief, the incident started when a male employee with an unblemished work record was talking on the telephone. He put the receiver down, walked up behind a nearby female co-worker, grabbed and squeezed her breasts, returned to the telephone, and said, "Yup, they’re real." What—if any—sanction would be imposed on this employee?
Take a few minutes to jot down what your response as the employer would be.
I am going to talk about credibility by focusing on three aspects of this incident, which I call the three C’s of credibility: collective credibility, contextual credibility, and consequential credibility.
Collective Credibility. My first category is "collective credibility," by which I mean belonging to a group that has credibility. Simply put, women as a group do not. Custom and law have taught that women are not to be taken seriously and not to be believed. For most of this country’s history, the law classed women with children and the mentally impaired and forbade us to own property, enter into contracts, or vote. The rape laws were a codified expression of mistrust. Although the laws have changed, social science and legal research reveal that women are still perceived as less credible than men.
A few years ago I presented a program for the Missouri judiciary at which a male appellate judge said to his colleagues, "Gentlemen, let’s tell the truth. When a male attorney we do not know appears before us, we assume that he can do the job. But when a female attorney we don’t know appears, our attitude is ‘show me.’"
The American Bar Association Commission on Women in the Profession has observed that "women report that they are often treated with a presumption of incompetence, to be overcome only by flawless performance, whereas they see men attorneys treated with a presumption of competence overcome only after numerous significant mistakes. Minority women testified that adverse presumptions are even more likely to be made about their competence."
Contextual Credibility. The second aspect of credibility is "contextual credibility," by which I mean credibility that depends upon understanding the context of the claim. How can you assess someone’s credibility if you literally do not know what she is talking about, which is often the case when the matter concerns the life experiences of women. Our justice system, like our entire society, is not used to hearing women talk about their lives. An individual has a hard time being perceived as credible when she is talking about an area about which people, both men and women, have few facts and many mistaken opinions.
In October 1991 we were riveted to our television sets watching the Senate Judiciary Committee hearings into Professor Anita Hill’s allegations of sexual harassment against then-judge, now U.S. Supreme Court Associate Justice Clarence Thomas. Public opinion polls showed that respondents believed him over her by a two-to-one margin.
In October 1992 I sat at the National Association of Women Judges’ luncheon honoring Professor Hill and thought about the sea change in public opinion about her credibility that occurred over that year. Current polls show that the public now perceives her as the credible witness.
How do we account for this massive shift? I believe it is because 1992 was the start of a national teach-in about sexual harassment. Before the hearings, my colleagues at the NOW Legal Defense and Education Fund urged the Senate Judiciary Committee to begin the hearings with an expert witness to explain what sexual harassment is, how it affects its victims, how victims respond, and that sexual harassers come from all walks of life, including the judiciary. The committee ignored our advice, and Anita Hill testified in a vacuum. The result was that she faced the same kind of incomprehension as victims of child sexual abuse and rape when they seek justice.
She was vilified, for example, for her failure to file a sexual harassment complaint. The traditional insistence on a "prompt report" in sex crimes cases has always been the bane of rape victims. There is a wholesale failure to understand that victims of any kind of sexual abuse feel so deeply and personally violated that they resist disclosure, fearing that they will not be believed and that their humiliation will be compounded.
Consequential Credibility. The third aspect of credibility I call consequential credibility. Consequential is the opposite of inconsequential. Part of having credibility is being seen as someone of consequence, someone who matters, someone to be taken seriously. Part of being taken seriously is having your harms and injuries taken seriously.
Minimization of harms to women is a factor in rape sentencing, especially cases involving nonstrangers. Eighty percent of rapes are committed by someone known to the victim and often these rapists have no other criminal record, even though there is a high likelihood that they are recidivists. There is a supremely mistaken assumption that for a woman to be raped by someone she knows is nothing more than "bad sex," nothing worth sending a nice guy to jail for. But research shows that victims of nonstranger rape usually suffer even more severe and long-lasting psychological trauma than victims of stranger rape. They experience greater societal and self-blame for not avoiding the rape and their ability to trust other people in any context is destroyed. I began this article by asking you to decide what disciplinary measures, if any, should be taken against a male employee who sexually harassed a female co-worker by grabbing her breasts and then making a comment about her breasts to a crony on the telephone. The Chrysler Corporation fired a harasser for precisely this behavior, but was overruled by an arbitrator. The arbitrator stated that the punishment was too severe for a first offense because this was not the equivalent of "extremely serious offenses," such as stealing money or striking a foreman.
The perception that sexual assault is less serious than theft is appalling and not unique to this case. Under sentencing guidelines for the U.S. federal courts until 1994, rape was punished far less severely than robbery. Many of the state supreme court task forces on gender bias in the courts have urged that the state sentencing guidelines for rape be increased to take account of the profound psychological trauma of sexual assault.
Women lack collective credibility, contextual credibility, and consequential credibility. As a group we are perceived as less competent than men; the context of the harms for which we seek redress in the courts is often completely foreign to the trier of fact; and even when the harm is acknowledged, it is often minimized by a de minimis punishment for those who injure us.
Changing this requires an intensely conscious effort. Some steps that other judges have taken include monitoring their response to lawyers who appear before them to see whether they are surprised when a woman is able and a man is not, and mentally switching the sex of the individual they are evaluating to ask themselves whether they would respond the same way if this woman were a man and vice versa.
Lynn Hecht Schafran is Director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts, a project of the NOW Legal Defense and Education Fund in cooperation with the National Association of Women Judges.
This article is an abridged and edited version of one that originally appeared in The Judges’ Journal, Winter 1995 (34:1).