Thursday, February 10, 2011

New UK Guidelines for Prosecuting Women Who Retract Rape Claims: One Step Closer to Not Prosecuting False Rape Claims

This is an important post. Today, there was yet another partial victory for anti-rape campaigners in the UK, possibly at the expense of innocent men and boys.

Last year  in Great Britain, a woman was sentenced to eight months in jail for withdrawing an allegation that her husband had raped her. A court found she had been the victim of prolonged domestic abuse and had backed down from the rape complaint under pressure from her husband. She was jailed not because the allegation was false (police believe she was raped) but because her retraction was false. She was freed on appeal after 18 days by the Lord Chief Justice who said justice system had a duty to show compassion to a woman who had already been victimised.

In answer to the predictable maelstrom that erupted over that issue, the Crown Prosecution Service is developing guidelines to tell prosecutors when it's proper to prosecute following a woman's retraction of a rape claim.  The purpose of the guidelines is to make sure prosecutions don't deter rape victims from coming forward to report their rapes.  According to the BBC: The director of public prosecutions, Keir Starmer, explained: "Our interim guidance aims to protect individuals who retract a truthful allegation as a result of pressure or fear of violence, while taking a firm approach to those who make a malicious allegation against an innocent person."

The chief executive of charity Victim Support, Javed Khan, said: "The consultation is a really welcome move demonstrating that the CPS is taking the issue seriously. We must be careful not to create any new or bigger obstacles, either directly or indirectly, that stop victims of rape and domestic violence from coming forward and reporting."  Link:

Starmer told the Guardian: "We need to work on our approach in retraction cases. From now on, my approval for charging will be needed in these cases and we will monitor them closely. If the victim has decided to withdraw a rape allegation, we must explore the issues behind that, particularly if the victim is under pressure or frightened." Link:

That last paragraph is problematic. Starmer needs to personally approve the prosecution of false rape claims for all retraction cases.  The number of cases that will see the inside of a courtroom promise to be fewer, perhaps far fewer. The real problem is that Starmer knows he's being closely watched by the sexual grievance industry, and if one more blatantly unfair case creeps through, he'll find himself in a heap of trouble.

There is nothing wrong with having fair and sensible guidelines to insure that miscarriages of justice don't occur, but the persons pushing this reform won't be satisfied with fair and sensible guidelines.  It seems that anti-rape campaigners like Lisa Longstaff (quoted in the Guardian article referenced above) won't be satisfied until a policy is put in place to insure that no female is ever prosecuted for making false rape claims. Ms. Longstaff has been quoted as saying the following: "Every prosecution [of false rape claims] puts women who have been raped off reporting it." Another time, she called efforts to prosecute women for making false rape claims "a concerted witchhunt."  Link:

Campaigns to avoid, or at least to more tightly regulate, the prosecution of women and girls who falsely report rape claims are supposedly intended to end the scourge of underreporting of rape.  Vast numbers of rape victims, we are told, simply aren't reporting their rapes.

Put aside that no one can say if underreporting is a serious problem because the rape milieau is so terribly politicized, it's impossible to trust the "studies" that supposedly support underreporting. 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). Put aside that the head of RAINN recently explained that women are not principally failing to report rape due to a fear of being disbelieved. See here. Put aside the fact that it's foolish to combat one form of criminality, namely rape, by ignoring another form of serious criminality, namely false rape reporting.

Put all that aside. The overarching problem with the premise -- that we mustn't prosecute false rape claims for fear of discouraging women from coming forward -- is that, if you listen to the sexual grievance industry, no rape reform has ever been able to combat underreporting of rape.  Why, on earth, would this be any different?  Let's demonstrate what we mean:

In the interest of combating all this supposed underreporting, we eliminated the requirement of corroboration (this had the practical effect of flipping the old corroboration requirement on its head: now women don't need corroboration to bring a rape claim, but men and boys arrested on her say-so need corroboration of their innocence to get the charges dropped).

That wasn't enough, they said, so we enacted rape shield laws that barred admission at trial of the accuser's prior sexual history with persons other than the defendant, and tales of the abuse of these laws at the expense of the innocent are legion.

That wasn't enough, they said, so they extended rape shield laws to civil actions.

That wasn't enough, they said, so we eliminated the requirements of force and resistance, and boys who mistook their girlfriend's acquiescence as consent went to prison.

That wasn't enough, they said, so we eliminated the mens rea requirement for rape in many jurisdictions.

That wasn't enough, they said, so laws were enacted in the UK, and policies were put in place by the US news agencies and outlets, that granted rape accusers anonymity. No similar anonymity was afforded the presumptively innocent accused who are often destroyed by false rape claims.

That wasn't enough, they said, so we lengthened and eliminated statutes of limitations for rape. And middle-aged men suddenly were being arrested for rapes they allegedly committed in high school and college.

That wasn't enough, they said, so the UK started paying women to report rapes allegedly perpetrated against them, even rapes that did not involve physical force, adding a financial incentive for women to lie about rape. Men destroyed by false rape claims are entitled to no such compensation.

That wasn't enough, they said, so we enacted laws that forbade rape accusers from taking polygraphs. Men accused and convicted of rape were not excused from submitting to polygraphs, or from being subjected to penile plethysmograph testing, a  sort a junk science polygraph of the penis.

That wasn't enough, they said, so we enacted rules on college campuses whereby young women who report they've been raped cannot be charged with underage drinking. Another incentive to lie about rape.

That wasn't enough, they said, so we enacted draconian Federal Rule of Evidence 413, and many states adopted similar laws. With this law, unlike any other criminal charge, including murder, robbery, even planning the World Trade Center attacks, a rape trial in federal court and in various states allows evidence of the defendant's commission of prior offenses of sexual assault to show that he has a propensity for committing the crime at issue. This rule, which is unique in all of American jurisprudence and widely condemned by legal scholars, allows the jury to hear about the defendant's prior acts, whether or not the defendant takes the stand. Even mere accusations of prior sexual offenses that occurred years before -- and even criminal allegations for which the defendant was acquitted -- are admissible if the alleged prior act is proven by just a preponderance of the evidence (far lower than beyond a reasonable doubt). 

In the end, after all those reforms, the sexual grievance industry continues to insist -- guess what? -- that rape, and underreporting of rape, are still rampant.

Why? Let's not mince words. Because, of course, the sexual grievance industry needs underreporting to "explain" why a crime they claim is rampant has relatively few reported cases. That's why.

My educated guess is that tales of vast underreporting are hokum, smoke and mirrors conjured up by persons whose livelihood depends on the existence of a crisis only they can solve.

So, will this new UK policy combat underreporting? Not a chance. And my fear is that it is just one more step toward allowing women and girls to lie about rape with impunity. Literally.