The Justice System Runs On Testimonial, ‘He-Said She-Said’ Evidence

by Michele Sharpe

Modified from flickr/Bri

What makes a “he said/she said situation” different from any other dispute between witnesses? In a word: Nothing.

Explainers everywhere are working overtime to preserve patriarchal values. One popular strategy that continues to crop up states that, “rape is different from other crimes because it’s a ‘he said/she said’ situation.” This faulty line of reasoning reveals three things: an assumption that in disputes between men and women, men must be given the benefit of the doubt; an assumption that all rapists are men and all victims women; and glaring ignorance about how the U.S. justice system actually operates.

The justice system runs on testimonial evidence, which is exactly what “he said/she said” is. What makes a “he said/she said situation” different from any other dispute between witnesses? In a word: Nothing.

Whether it’s a small claims case between neighbors over dog poop, or a death penalty case of murder in the first degree, witnesses will give testimony, and each side’s testimony will usually oppose the other side’s testimony. If everyone agreed, there would be no reason to be in court to begin with.

Inevitably, some of these disputed cases will pit “he said” testimony against “she said” testimony. We hear the “he said/she said situation” line exclusively in sexual assault cases because men have been accustomed through history to the benefit of the doubt (if not outright commendation) in heterosexual rape cases.

Cases are decided every day based solely on witness testimony. The “lack of corroborating evidence” for testimony — cited by Senator Susan Collins and others during the Brett Kavanaugh hearings as a potential violation of Kavanaugh’s rights — doesn’t mean a denial of due process, the fair procedures that the all citizens are entitled to, nor does it void a presumption of innocence.

To be clear, testimony by a competent witness is sufficient evidence on its own.

The legal definition of “competent” has evolved over the last one hundred fifty years to mean, simply, being able to perceive and communicate what happened. The “he said/she said” line is likely a holdover from when certain groups of people were classified as incompetent witnesses by virtue of their status. In ancient Athens, for example, women were excluded from courts entirely. And in the 21st century, Jewish law in Orthodox and Conservative communities still holds that women are not competent witnesses in most cases.

To be clear, testimony by a competent witness is sufficient evidence on its own.

Excluding people of color from testifying was a common practice in the States, and it was legal until passage in 1868 of the 14th Amendment. Why? As one court held, it was because of “their crude and monstrous superstitions, which rendered them incapable of feeling or appreciating the obligation of an oath, as felt and appreciated in a Christian community; and it was not, therefore, deemed safe to receive them as witnesses, even against one another.”

Under similar rationale, atheists of any color were also deemed incompetent to testify, beginning in the States during colonial times and extending in many jurisdictions through the mid-nineteenth century. Denying people the right to testify, or questioning the credibility of a particular demographic, has always been a way for courts to strengthen social hierarchies like institutional racism and sexism.

The ‘he said/she said’ line is likely a holdover from when certain groups of people were classified as incompetent witnesses by virtue of their status.

While women and people of color are now, legally, competent to testify, barriers against them persist. Leigh Gilmore, author of Tainted Witness: Why We Doubt What Women Say About Their Lives and a distinguished visiting professor at Wellesley College, writes that sexual and racial violence are seen by some as “belonging to a separate ordered of judgment.” Moreover, gender and race stereotypes are “sticky judgments,” so ubiquitous that we can’t see them, so prevalent that they seem “neutral.”

When asked to share some thoughts about how doubting women’s testimony creates a benefit for men in the justice system, she says,

“[G]ender bias makes doubting women feel rational and virtuous rather than unjust. ‘He said’ carries more weight than what ‘she said’ because women’s testimony is demeaned and discredited in ways that men’s testimony isn’t. . . .We have vividly seen with the #MeToo movement the effects of this bias: the lack of transparent and fair processes for women to report sexual violence, the blaming of victims for bringing forward accusations of sexual assault both “too soon” and risking men’s reputations and also “too late,” which disregards all the mechanisms for silencing and shaming victims.”

In this view, witnesses from the dominant group get the benefit of the doubt. Even though it’s a legal truism that “most facts are proved by testimony,” and that even in cases where physical evidence exists, “the human recital — viva voce — is often crucial to the establishment of its authenticity or significance,” testimony from members of marginalized groups in the States and elsewhere has often been cast as unreliable, or simply excluded from consideration.

As a former trial attorney, I’ve seen how the he said/she said dynamic is replicated in cases involving parties from opposite ends of a hierarchy. It could be “white cop says/black kid says,” or “boss says/employee says,” or “priest says/choirboy says,” or “corporate polluter says/environmental group says.” In any case, the member of the dominant class gets the benefit of the doubt. Dr. Gilmore connects this bullshit phenomenon to the “reasonable man” standard in U.S. law:

Take the legal fiction of the ‘reasonable man’ whose motives and actions juries are instructed to consider as the standard for deciding, for example, cases of self-defense. When women claim self-defense in cases where they kill a man, often a violent intimate partner whom they know is intent upon inflicting violence on them — an act that meets the self-defense standard — juries often fail to apply self-defense accurately because they doubt women were justified in using force to defend themselves for two reasons: the assumption that the woman overreacted or that the man’s life, to be blunt, is worth more. We see this in rape cases in lenient sentencing for men like Brock Turner whose father was outraged that his son would be punished for raping an unconscious woman, an act he described as ‘a steep price to pay for twenty minutes of action.’

Just imagine reactions to someone claiming that a prison term was a “steep price to pay” for a woman who took only twenty minutes to torture a man. Flipping the script on cultural assumptions is one way of highlighting their injustice. Dr. Gilmore expects a backlash.

Gender and race stereotypes are ‘sticky judgments,’ so ubiquitous that we can’t see them, so prevalent that they seem ‘neutral.’

Bias is woven into all the processes for judging what women and people of color say about their lives; so is the unfair privilege that powerful men receive in all aspects of life. In the leveling of this imbalance, men will likely feel aggrieved by the loss of this unearned and undeserved testimonial credit, as will all of those habituated to thinking that male elites deserve this credit.

Victims of racist and sexual assaults will continue to risk further abuse in police stations, courtrooms, congressional hearings, and the media until we explode all versions of “he said/she said” dynamics. And that means a constant, close examination of how media and justice systems treat women and people of color when they come forward to testify.