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Why are sexual assault accusers frequently asked, "Did you scream?"

JUANA SUMMERS, HOST:

A warning - this next conversation deals with sexual assault. In a New York courtroom, writer E. Jean Carroll said, quote, he raped me whether I screamed or not. She's suing former President Donald Trump for battery and defamation. Trump denies Carroll's claims, and she made that remark during a tense exchange with Trump's lawyer, Joseph Tacopina, who asked why she hadn't screamed if she had truly been raped.

SACHA PFEIFFER, HOST:

Carroll's lawsuit is unusual, in part because the defendant is a former president. What's not unusual about the case is the question - why didn't you scream? - and the implication that a victim has to scream to be believed. Deborah Tuerkheimer is the author of "Credible: Why We Doubt Accusers And Protect Abusers," and she's a law professor at Northwestern University. Deborah, thanks for coming on the program.

DEBORAH TUERKHEIMER: Thanks for having me.

PFEIFFER: That question - why didn't you scream? - how often is that put to people who are alleged victims of rape in a courtroom setting?

TUERKHEIMER: It's a common question, that question and some variation on it, having to do with what the victim did to resist, either physically or verbally, the assault.

PFEIFFER: I read that there actually used to be, in some states, laws that said you had to show that you physically tried to prevent a rape or an assault in order for you to win your case. Was that true, and is that still the case in some places?

TUERKHEIMER: It is true. The notion that a victim must resist to the utmost or to show earnest resistance or, at the very least, reasonable resistance, all of this was baked into rape law from its origins, frankly. And still today, we see vestiges of that. While most states have moved away from this formal resistance requirement, there are aspects of rape law that continue to put a burden on victims to do something, whether it's physical or verbal, to show their unwillingness.

PFEIFFER: And are there some state laws that actually say you need to show verbal resistance?

TUERKHEIMER: Well, what we see in certain states is a definition of consent that puts the onus on the victim to demonstrate unwillingness, either physically or verbally. So we can see this as an expansion of the resistance requirement. It gives victims somewhat more leeway, but at the same time, it continues to insist these kinds of laws that victims do something.

PFEIFFER: You mentioned the history of this is quite long, and you wrote a piece recently for The New York Times in which you talked about this legal theory or this legal line of questioning going back to the 1700s. That's quite interesting. Could you explain that for our listeners?

TUERKHEIMER: Yes, going all the way back to Lord Hale, an English barrister. Lord Hale was very skeptical of rape allegations and really did a lot to influence the development of rape law in England and then in the States. And so many of these unique requirements that we see in rape law can really be traced to Lord Hale's sense that only a certain kind of proud and virtuous woman could ever be raped.

PFEIFFER: You know, this idea of crying out for help seems to be the opposite reaction than the body does in that moment.

TUERKHEIMER: That's right. Experts know that there are so many reasons why victims may not fight their socialization, which, particularly for girls, may lead someone not to fight. There's the kind of habit that many people develop, particularly if they are the victims of childhood sexual abuse, that may lead them to what seems like passivity. There's the freezing mechanism, the sort of immobility that neuroscientists understand is a common response to assault. And then there's self-preservation, which is that sometimes it can feel safer and it can be safer not to fight back.

PFEIFFER: Obviously, the rights of the accused matters here too, and every person who's accused of something wants a robust defense. If someone is accused of rape or sexual assault, what is a way for them or for their lawyer to defend them in a way that isn't going to be perceived negatively as if it's victim-blaming?

TUERKHEIMER: Well, credibility is an issue in just about every case, and witnesses are cross-examined all the time, particularly on motive to lie. If the defense attorney is suggesting that this is a witness who's coming into court and is telling a falsehood, most jurors would want to know, why would a person do that? And the hope, I think, is that over time, the kinds of questions would be asked that are more evidence-based and more keyed in to the particulars of a case rather than drawing on these larger tropes about false accusers.

PFEIFFER: That's Northwestern University law professor Deborah Tuerkheimer. Thank you.

TUERKHEIMER: Thank you. Transcript provided by NPR, Copyright NPR.

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Courtney Dorning has been a Senior Editor for NPR's All Things Considered since November 2018. In that role, she's the lead editor for the daily show. Dorning is responsible for newsmaker interviews, lead news segments and the small, quirky features that are a hallmark of the network's flagship afternoon magazine program.
Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.