The legend of “He Said, She Said” is rooted in old English law where rape prosecutions could not be tried unless every material element of the victim’s story was corroborated by another witness or other evidence. The corroboration requirement applied only to allegations of sexual assault. It did not apply to cases like alley muggings, physical assaults or robberies. In those cases, victims could rely solely on their testimony at trial. The gender-bias that drove the corroboration requirement in sexual assault cases is undeniable and continues to plague our legal system, schools and workplaces, giving the dominant party the benefit of the doubt. In high profile civil cases, such as the Kavanaugh hearing, victims and their advocates face public skepticism based on the belief that if it’s one person’s word against another’s, there is no way to make a finding. But that’s not so.
Every day, investigators apply proven methods to determine the truth. According to the EEOC’s enforcement guidance, “If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility.” The guidance goes on to provide a road map for investigators to assess a party’s credibility. With this guidance in mind, a thorough, impartial, and prompt investigation can determine the credibility of the parties using a variety of factors, including statement analysis, corroboration from other sources (such as outcry witnesses and electronically stored information), motive to falsify, biases, and plausibility. On some occasions, investigators may consider a witness’s demeanor, although demeanor on its own should not be determinative of credibility. Even when victims report offenses years later, credibility assessments can be used successfully to reach a reasoned finding.
With the power of hundreds of years behind the “He Said, She Said” myth, it is a challenge concept to dismiss and requires significant education and proactive communication.