Thursday, October 29, 2009

'Rape culture,' feminist claims minimizing false rape prevalence, called into question by law professor

In the following excerpt from a law review article, Professor Dan Subotnik cautions that we should be skeptical of the "rape culture" label and of the feminist claims minimizing the false rape problem. D. Subotnik, "HANDS OFF": SEX, FEMINISM, AFFIRMATIVE CONSENT, AND THE LAW OF FOREPLAY, 16 S. Cal. Rev. L. & Social Justice 249, 280-81 (2007):

Do Americans inhabit a "rape culture?" According to United Nations data for 2000, the percentage of people reporting victimization by "sexual incidents" in the United States is less than the average percentage of victimization in the twenty-three industrialized countries measured. This was equally true for component parts of that category, "sexual assaults" and "offensive sexual behavior." Moreover, the U.S. assault and threat rates are, generally, far higher than the "sexual incident" rate. This is not to equate the impact on victims of these various crimes with the impact on rape victims, but I know from personal experience the trauma of being mugged. If we do not despair over an assault-robbery culture, it seems both fair and socially constructive to be highly skeptical of the rape-culture claim.

And perhaps of everything else written about rape, for it should be evident that the entire body of rape literature requires strict scrutiny. 228

n228 Let's focus on false rape charges. A much-cited datum is that false rape charges amount to only two percent of all rape complaints. See Edward Greer, The Truth Behind Legal Dominance Feminism 's "Two Percent False Rape Claim " Figure, 33 LOY. L.A. L. REV. 947, 949 & n.l 1 (2000). The latest data "indicate that the rates for false reports of rape are comparable to false charge rates for other crimes." NANCY LEVIT & ROBERT R. M. VERCHICK, FEMINIST LEGAL THEORY 184 (2006); see also Bonnie S. Fisher et al., Acknowledging Sexual Victimization as Rape: Results from a National-Level Study, 20 JUST. Q. 535 (2003) (reporting that women considered to have been raped were, in fact, raped).

Anderson, however, admits that the two-percent number is questionable. See Anderson, supra note 119, at 984, 985 & n.235. The false rape problem would appear to be far more serious. See JOHN M. MACDONALD WITH DAVID L. MICHAUD, RAPE: CONTROVERSIAL ISSUES 84-108 (1995). A medical doctor and highly published author on criminal law issues, Macdonald was, at the time he wrote the book, professor emeritus in psychiatry at the University of Colorado Health Sciences Center.

In what is probably the most extensive empirical study of false rape, Purdue psychologist Eugene J. (E.J.) Kanin, reported on his study of a small Midwestern metropolitan area where, of 109 charges of forcible rape, 41% proved false and unfounded. Eugene J. Kanin, False Rape Allegations, 23 ARCHIVES SEXUAL BEHAV. 81, 83-84 (1994). A "false and unfounded" conclusion was reached only when the complainant admitted that no rape occurred. Id. In two large Midwestern universities that they also studied, 50% of reported forcible rapes were found to be false and unfounded. Id. at 90. Here complaints were investigated exclusively by female officers and, again, recantation was required. Id.

The FBI has put the rate of false rape charges at 8%, four times the number for other crimes it tracks. See MACDONALD, supra, at 86 (citing the FBI's Uniform Crime Reports); Anderson, supra note 119, at 985; see also Dick Haws, The Elusive Numbers on False Rape, COLUM. JOURNALISM REV., Nov.-Dec. 1997, available at http://archives/cjr/org/year/97/6/rape.asp. And in the context of race, false rape charges have long been acknowledged. See LISA LINDQUIST DORR, WHITE WOMEN, RAPE, AND THE POWER OF RACE IN VIRGINIA, 1900-1960 (2004). The Duke case provides a contemporary example. Should this not raise concern generally?

The false rape problem goes way back in time. In fact, our patriarchs' lives stand as a stern warning against women's brazenness in this regard. See Genesis 39, for the account of Potiphar's wife who sets Joseph up for incarceration because he rejected her advances. She apparently never recanted, and let Joseph languish in prison for twelve years. See THE PENTATEUCH AND HAFTORAHS 158 n.46 (J. H. Hertz ed., Soncino Press 1965).

The above discussion raises a simple but important question: Was enactment of rape shield laws a capitulation to the mob as in the Brown and Duke cases?