Gender Bias In The Courts: Women Are Not Believed

By Patricia Fersch

On April 5, 2023

Women are not believed, one legal whitepaper finds. “Laws meant to protect women and deter further abuse often fail to achieve their purpose, because women telling stories of abuse by their male partners are simply not believed.” How and why does the justice system discount women’s credibility and what can be done?

There have been over the last several years, an unprecedented wave of testimonials about the serious harms women all too frequently endure in the justice system most specifically with regard to sexual harassment in the workplace and sexual abuse. The #MeToo moment, the #WhyI Stayed campaign, and the Larry Nassar sentencing hearings raised public awareness not only about workplace harassment, domestic violence, and sexual abuse, but also about how women are routinely disbelieved as they try to tell their stories to employers, police, Human Resource personnel.

The highly publicized Amber Heard and Johnny Depp civil case showed in real time how women’s testimony can be discounted in the courtroom and men found to be more credible even though statistically men are more likely to lie than women. A meta-analysis on honesty, based on 380 experiments that recorded gender differences in lying, indicated that men were 4% more deceptive than women.

Gender Bias In The Family Courts

Gender bias extends to the family courts. Gender-based differences in family court outcomes have been noted in findings created by state judicial commissions and domestic violence advocates, as well as in case analyses and empirical studies of family court professionals. Many states created reports in the 1980s and 1990s documenting gender bias in the courts by raising issues ranging from sexism against female attorneys and judges to bias against female litigants. Some of these reports explicitly address the impact of gender bias on how judges assess women’s credibility in cases including allegations of domestic violence.

Joan Meier, George Washington Law University School, addresses “Why are mothers’ claims of abuse so widely denied in court?” She opines that family courts and scholars’ idealization of shared parenting goes a long way to explaining courts’ powerful motivation for rejecting mothers’ allegations of abuse by fathers. Denying women’s claims of abuse allows for the courts to do nothing-to maintain a status quo.

The 2020 “Women in the Courts” study that served as a follow up to the 1986 published study of the same name produced startling results. “More than half (51%) of female attorneys reported that they agreed with the statement that “male judges appear to give more credibility to the statements/arguments of male attorneys than female attorneys”; 13% of male attorneys agreed. There appeared to be less concern with female judges, although 29% of female responders agreed that female judges also appeared to give more credibility to male than female attorneys. When asked about witnesses, 27% of female attorneys agreed that male judges appeared to give more credibility to male witnesses than female witnesses, whereas the number was only 16% with female judges.”

Gender Bias In Courts Is Mostly Unreported And Unknown

Family court judges are afforded significant discretion in assessing the parties’ credibility, rendering appellate review an unlikely relief to concerns about discounted credibility of IPV victims. In a recent Appellate case in New York, the Appellate review included, “Court’s credibility determinations are entitled to great weight.” Michael Y v. Dawn S, 206 A.D.3d 506. At a bench trial (judge, no jury), the judge is the “finder of fact”. Family courts tend to receive little public scrutiny, which may enable discounted credibility to continue to disadvantage IPV (intimate partner violence) victims without meaningful examination. As such, it is important to consider what biases could contribute to the persistence of credibility discounting in order to ensure that IPV victims are afforded the protections that they need.

‘Credibility Discount’ Impacts All Women

The New York Study of Women in the Courts led by Justice Betty Ellerin in 2020 points to a systemic problem impacting on women in all phases of litigation in our court system-from family courts to medical malpractice lawsuits to the manner in which women are treated in the courtroom and outside the courtroom by colleagues.”

The Credibility Gap Must Go Beyond Legal Scholars

Thirty years ago, legal scholars and social scientists noted the legal system’s skepticism of women in general and victims of gender-based violence in particular. Deborah Tuerkheimer coined the term “credibility discount” to describe how the criminal legal system responds to women’s reports of sexual violence by discounting their credibility at every step of the process, from initial reports to law enforcement and prosecutorial discretion through judicial and jury decisions. This credibility discount impacts women in general in all aspects of the criminal justice and family court systems.

Why Women Are Less Likely To Be Believed

No matter the content of her story, women are considered unreliable narrators of their own experiences. The assessment of women’s personal trustworthiness suffers from skepticism rooted in (1) uneducated expectations regarding a survivor’s “appropriate” demeanor; (2) prejudicial stereotypes regarding the false motives of women seeking material assistance; and (3) the long-standing cultural tendency to disbelieve women simply because they are women.

Recent fiction that stars the female “unreliable narrator” highlights this difficulty: The Woman in the Window: A Novel by A. J. Finn, 2018 and The Girl on the Train: A Novel by Paula Hawkins, 2015. As we read along, we are struck by the female narrator’s personal struggles (agoraphobia and alcoholism, respectively) that cause us to “disbelieve” them until we learn what lies behind their difficulties. There is a lesson here in listening to women in court and believing them.

4 Common Misperceptions That Hurt Women Testifying In Court

Misperceptions of court personnel and experts often include:

• Misperception #1: “I would immediately leave a partner who abused me.”

• Misperception #2: “I can tell if someone experienced interpersonal violence by the way they act when discussing the abuse.”

• Misperception #3: “It is easy to detect if someone is lying based on where they are looking and what they are saying.”

• Misperception #4: “I know what happened and the evidence supports me.”

People often hold misbeliefs about how “liars” behave, believing that they avoid making eye contact known as “gaze aversion”. How Social Science Can Help Us Understand Why Family Courts May Discount Women’s Testimony in Intimate Partner Violence Cases Family Law Quarterly, Vol. 53, No. 3, 2019.

How Can Women Be Believed In The Courtroom And The Criminal Justice System?

The understanding of psychological concepts underlying credibility discounting serves to highlight the need to increase and strengthen the lines of communication between science and the law. Collaboration between legal psychologists and family court actors, working together, can help to inform practice and policy change that helps victims navigating the family court system and lessen or completely alleviate confirmation bias.” How Social Science Can Help Us Understand Why Family Courts May Discount Women’s Testimony in Intimate Partner Violence Cases Family Law Quarterly, Vol. 53, No. 3, 2019.

Publicizing the credibility gap between men and women and making the general public outside of legal circles and law schools aware of it is necessary to help force a confrontation of these biases in the courtroom and without. It was public awareness through the #MeToo moment, the #WhyI Stayed campaign, and the Larry Nassar sentencing hearings that brought into focus the abuses perpetrated on women and the struggles they face coming forward to tell their “truths.”

This piece was republished from Forbes.