Tuesday, January 28, 2014

The White House trivializes false rape claims

The White House Council on Women and Girls has issued a report titled "RAPE AND SEXUAL ASSAULT: RENEWED CALL TO ACTION"  that discusses, among other things, low arrest rates for sexual assault. It states that because "some" police officers believe the rape "myth" that "many" women lie about rape, this "may help account for the low [arrest] rates."

The report makes sure to add: ". . . in reality, only 2-10% of reported rapes are false." (Emphasis added.)

There are two clear and purposeful implications from this assertion that are as erroneous as they are dangerous to the rights of the presumptively innocent: first, that anywhere from 90 to 98 percent of all reported rape claims are actual rapes; and second, that there aren't enough falsely accused victims to worry about. It is troubling on a host of levels that the White House endorses these implications.

Put aside the fact that even taking the statement at face value, ten percent of reported rapes is a fairly significant number of  falsely accused citizens (what other group of victims would tolerate being trivialized with statements that there are "only" a certain number of them?), by declaring that "only" two to ten percent of all rapes are false, the implication is that 90-98 percent are actual rapes. That is simply not factual.

The White House cites the Lisak study, found here, in support of its assertion. In fact, if you actually review the numbers used in the Lisak study, you will find that 58.8% of all claims fall into a vast gray area where the researchers simply could not say whether it was a rape, a non-rape, or a false claim. It is most unlikely that all of those were actual rapes.

In addition, Lisak, et al, used a fairly exacting standard to determine whether a claim was false -- "if there was evidence that a thorough investigation was pursued and that the investigation had yielded evidence that the reported sexual assault had in fact not occurred." They did not use as exacting a standard to determine whether a rape actually occurred. The study found that 35.3% of rape claims were referred for prosecution or disciplinary action. Lisak et al did not offer any opinion as to the propriety of any of these referrals, and did not reveal the outcome of the prosecution or disciplinary action for any of them. Our work on behalf of the wrongly accused has revealed many wrongful claims that had been improperly or incorrectly referred for prosecution or disciplinary action. In short, of the claims comprising Lisak's 35.3%, it is most unlikely that all were actual rapes.

In short, the Lisak report simply cannot be read to support the proposition that 90-98 percent of all rape claims are actual rapes. The White House report needs an asterisk to explain this because it is creating an erroneous impression.

Why does this matter? Because "facts" such as this that are used to trivialize the prevalence of false claims, and to maximize the prevalence of rape, are frequently cited to support efforts to roll back the due process rights of the presumptively innocent accused of sexual assault. It is astounding to us that there aren't a lot more people, especially our friends in the progressive camp, challenging these assertions, given their deleterious impact on the presumptively innocent accused of sex offenses.

The public discourse about sexual assault needs two distinct sets of  voices: those that strive to eradicate heinous criminality by punishing offenders, and those that insist the innocent not be punished with the guilty. Given the politicized nature of sexual assault, the latter voices not only are absent from the public discourse but those of us who attempt to raise these issues are shamed often into silence. See here.

Before he became president, Barak Obama was one of the very few national politicians who called for a Justice Department criminal investigation of Mike Nifong. The president has taught Constitutional Law at a law school level, and he understands the issues we speak about. Even though it won't bring his party a single vote in the 2014 elections, we implore the President to give voice to the concern that the innocent not be punished with the guilty -- if only to underscore that the all-important balance between punishing the guilty and protecting the innocent must always be struck.