Sunday, December 12, 2010

The upcoming Lisak rape report: false rape claims are in the single digits

Coming this month, supposedly, is a report of a study conducted by Prof. David Lisak on the prevalence of false rape claims. According to a blogger named Thomas MacAulay Millar, Lisak studied all rape claims made to a U.S. university police department over a ten year period, and concluded that only 5.9 percent were false allegations.

Here's the criteria Lisak supposedly used:  "The determination that a report of sexual assault is false can be made only if the evidence establishes that no crime was committed or attempted. This determination can be made only after a thorough investigation. This should not be confused with an investigation that fails to prove a sexual assault occurred. In that case the investigation would be labeled unsubstantiated. The determination that a report is false must be supported by evidence that the assault did not happen."

How did the claims break down? Pay attention:  5.9%, were false reports; 44% resulted in no disciplinary action; 35.3% resulted in the case proceeding; and the file in about 14% was too insufficient to code.

First, I can't tell what happened with any of the claims in the 35.3% category that "resulted in the case proceeding." What does that tell us about whether the claims were true or false?  Absolutely nothing, of course.

Second, from Millar's blog report, I have no idea if Lisak arrived at a percentage of rape claims he determined were actual rapes

Apparently not, but that doesn't stop Millar from making the following pronouncement: "False reports sometimes happen. False reports are a single-digit percentage of the total reports . . . ."

Really?  And how on earth could Millar possibly make that assertion?  He can't honestly pretend to know that there were no false claims among the claims in the other categories, now can he?  Just because they can't be proven "false" using the criteria Lisak employed doesn't mean they weren't false.  We just can't tell. Millar can't tell. I can't tell. No one can tell.

Or -- please tell me this isn't so -- is Millar assuming that if a claim wasn't proven false in accordance with Lisak's criteria, that it was either definitely or very likely an actual rape?  Seriously?  Puh-lease don't tell me he is saying that!

To say that false rape claims are only in the single digits of all rape claims requires a leap in logic for which there is precisely no authority beyond Millar's serene ipse dixit.  It is misleading in the extreme to say definitively that only 5.9% of all rape claims reported on college campuses were false.

If there were utility in coming up with a percentage of false rape claims, the correct way to discuss the false rape phenomenon is to talk only about claims we know were either false claims or actual rapes:  first, remove from consideration all those rape claims for which we don't know, one way or the other, if the claim was false or an actual rape.  Don't make any politicized assumptions about those, as much as some people would like to.  Then take all the rape claims for which we know with certainty, one way or the other, if the claim was an actual rape or a falsehood -- of that latter number, what percentage of the claims were false?

Only talk about the claims where we know what happened. That's the only honest way to discuss the problem. 5.9% in a vacuum means nothing. We need not be defensive about that number -- the percentage of claims we know were actual rapes could be lower.  For most claims, we just won't know for certain what happened. That's the nature of a false rape claim.  Using this honest method, Lisak should come up with a hefty double digit number of false rape claims. But to posit we "know" 5.9 percent are false is completely useless. Worse than useless, because it's misleading -- it wrongly suggests that the rest, the 94.1 percent, were actual rapes. 

There is a legal term for such an implication: "horseshit."

Sadly, rape has become so embroiled in the gender-politicized sexual assault milieu, where serious dialogue grounded in fact is displaced by vituperative rants and politically motivated assertions, that most reports about the prevalence of such false claims are inherently untrustworthy. The people who get funding to do research in this area often have a vested financial interest in insisting that rape is rampant, and that male predatory behavior is a national epidemic.  They teach courses, and have written boatloads, that so insists. What are the odds that such a person will head up a study that categorically refutes everything he or she has taught?  How about "none."  (The much reviled Kanin, on the other hand, was a feminist darling cited in the infamous Koss report until he suddenly became a nitwit when he published his false rape piece. Go figure.)

It is disingenuous to insist that false rape claims are an insignificant number because no one knows for certain the percentage of false rape claims. A leading feminist legal scholar has acknowledged this irrefutable fact: ". . . the statistics on false rape accusation widely vary and 'as a scientific matter, the frequency of false rape complaints to police or other legal authorities remains unknown.'" A. Gruber, Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581, 595-600 (November 2009) (citation omitted). An authoritative law review article debunked the canard that only two percent of all rape claims are false. The author traced this number to its baseless source. See The FBI has compiled statistics to show that women lie far more often about rape than other crimes. The Politics of Sexuality, Barry M. Dank, Editor in Chief, Vol. 3 at 36, n. 8. It is, therefore, erroneous to assert that only a small or insignificant percentage of rape claims are false because no one can make that assertion with any degree of certainty, and all the available evidence suggests it is wrong.

That the exact prevalence of false rape claims is neither known nor knowable is easily demonstrated. Only a relatively small percentage of rape claims can be definitively called "rape." This is beyond dispute. Roughly fifteen percent end in conviction in the U.S. and of those we know that some innocent men and boys are convicted. We also know that some claims reported (the numbers vary depending on the study) are outright false. But in between the claims we are reasonably certain were actual rapes, and the ones we are reasonably certain were false claims, is a vast gray area consisting of a group of claims that cannot properly be classified as "rapes" -- because we just don't know. That's the nature of a rape claim. The claims in this vast gray middle area often suffer from evidentiary infirmities. For example, for some such claims, while the claimant herself might think a rape occurred, her outward manifestations of assent did not match her subjective disinclination to engage in sex, so it wasn't rape. And that's just one of a countless number of examples.

Millar also noted that the majority of women decline to report their rapes because people "act like skeptics and inquisitors to women who report allegations of sexual assault."

That's, of course, another rape myth. At the Specter Senate rape hearings in Washington in September, Scott Berkowitz, President and Founder of the Rape, Abuse and Incest National Network (RAINN), blew the lid off the myths about why women don't report their rapes. Berkowitz rejected the common consensus that women don't report because they legitimately fear they won't be believed by the law enforcement and judicial systems that have failed them, or because false rape reports are given inordinate attention and news coverage. According to the summary of Mr. Berkowitz's testimony, prepared by Amanda Hess, no less: "On reporting: More victims may not be reporting their rapes, but the reasoning has changed over the past few decades. 'A generation ago,' the reasons were things like, 'fear of not being believed; fear of being interrogated about and blamed for their own behavior, and what they were wearing. In short, they feared that they would be the one on trial.' Today, 'the perception of many victims has evolved.' Now they don't report for these reasons: 'they don't want their loved ones to know what happened; they're ashamed themselves; they just want to put it all behind them.'"

Here is reality: no one -- no one -- knows the precise extent of underreporting, and no one ever has. In fact, the politicization of rape renders it impossible to discern whether underreporting is even a significant problem. See, J. Fennel, Punishment by Another Name: The Inherent Overreaching in Sexually Dangerous Person Commitments, 35 N.E.J. on Crim. & Civ. Con. 37, 49-51 (2009).

Millar concludes with this pithy dicussion closer, the literary equivalent of "I am right, and the rest of you can go f*ck yourselves": "The incidence of false reporting is simply not high enough to justify the propaganda put forth by the pro-rape lobby."

By any measure, denigrating the unique and typically awful experience of the wrongly accused by dismissing them as a myth, or by trivializing their vicimization as unworthy of discussion, is not merely dishonest but morally grotesque.