Tuesday, July 24, 2012

Not enough falsely accused "to worry about" . . . . Seriously?

The vast majority of women and men are offended by both rape and false rape claims. Fighting both evils is not, and should never be, a zero sum game, and there is no necessity to trivialize the victimization caused by one in advocating for the victims of the other.  Our advocacy at COTWA does not in any manner diminish our support for victims of sexual assault.  Rape victims have expressed to us their disgust with false rape claims because they understand that every rape lie diminishes the integrity of every rape victim. We must never trivialize the horrors of rape, and advocating for victims of wrongful accusations is not in any sense inconsistent with advocating for victims of false rape claims. 

Not Worth Worrying About

It is, therefore, distressing to read comments on the blogosphere by misguided victim's advocates that dismiss out of hand the unique problems of the wrongly accused.  Here is an example we saw on a blog recently: "Something like 4% of rape accusations are false. That’s not a big enough number that we have to worry about it." See here.

It is appropriate to respond to this unfortunate sentiment, since it echoes a belief that seems to have some currency. The literature is replete with references to the "myth" of false rape claims, or the “fact” that only two percent of all rape clams are false, consistent with the purported average for other crimes. It is not uncommon in this literature for men’s fears about false accusations to be dismissed with almost derisive references to Potiphar’s wife, who, according to the Bible’s Book of Genesis, wrongly accused Joseph (of “coat-of-many-colors” fame) of rape.  Those sentiments are both hurtful to the community of the wrongly accused and wholly unnecessary for effective advocacy on behalf of rape victims.

Unspeakable Injustices

We have chronicled numerous instances of shocking injustice suffered by persons falsely and otherwise wrongly accused of sexual assault.  By any civilized measure, our advocacy would be justified even if the wrongly accused were limited to the victims we feature on this site, or to "just" four percent of all reported rape claims -- a staggering number in itself -- but, in fact, the number appears to be considerably larger.

Emily Bazelon and Rachael Larimore wrote this: "What is clear . . . [is that rape and false rape claims] are the flip side of the same coin. False charges of rape are an absolute nightmare for the men caught in their net. And the specter of made-up allegations is a real problem for law enforcement—which means they are also a problem for women who are telling the truth."

False Rape Claims Undermine Confidence in Rape Claims

The sentiment that the number of falsely accused is not "a big enough number that we have to worry about it" is troubling on a host of levels. If the writer is truly concerned about rape victims, she should also be concerned about false claims. Rape should be regarded as a serious crime deserving of serious penalties. However, when prospective jurors -- male or female -- believe that false accusations against innocent men and boys are tolerated or overlooked, they are wary about convicting even men and boys who probably deserve punishment. In false rape case after false rape case after false rape case, we read about judges who reprimand the false accusers for the harm they do by diminishing the integrity of rape victims. These reprimands, sadly, do not resonate in the blogosphere, where reckless comments and uninformed opinions seem are common.

5.9%--With an Asterisk

Beyond that, the assertion that "[s]omething like 4% of rape accusations are false" fails to paint an accurate picture about the significance of the problem. We are loathe to dwell on numbers lest our words devolve into an unfortunate and divisive Oppression Olympics or be construed as trivializing the seriousness of the rape problem, something we will not do.  But a leading feminist legal scholar has acknowledged this 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). 

Why so much uncertainty? Because 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 the majority of the claims that can neither be classified as "rapes" or as non-rapes -- because we just don't know. That's the nature of a rape claim, where the act that gives rise to the claim is almost always committed in private. The claims in this vast gray middle area often suffer from evidentiary infirmities. Sometimes, 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 in that example, nor was it a false claim -- but a wrongful accusation is just as harmful to an innocent man or boy as a false accusation). And that's just one of a countless number of examples.

Dr. David Lisak published a study on the subject in 2010 in Violence Against Women where he classified 8 out of the 136 (5.9%) reported rapes at a major northeastern university over a ten year period as false.  This figure has been cited by some prominent feminist blogs. 

Dr. Lisak used an exacting definition of false claims:
. . . a case was classified as a false report 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. A thorough investigation would involve, potentially, multiple interviews of the alleged perpetrator, the victim, and other witnesses, and where applicable, the collection of other forensic evidence (e.g., medical records, security camera records). For example, if key elements of a victim’s account of an assault were internally inconsistent and directly contradicted by multiple witnesses and if the victim then altered those key elements of his or her account, investigators might conclude that the report was false. That conclusion would have been based not on a single interview, or on intuitions about the credibility of the victim, but on a “preponderance” of evidence gathered over the course of a thorough investigation."
While Dr. Lisak's study found that 5.9% of the claims were coded as false reports, this does not mean that 94.1% can, or should, be regarded as actual sexual assaults

Dr. Lisak's report shows that 58.8% fall into the vast gray area referenced above where we simply don't know whether it was a rape, a non-rape, or a false claim (and, again, from the innocent male's perspective, it makes little difference whether a wrongful claim was also a false claim). Specifically, Dr. Lisak explains that 44.9% of the claims did not proceed to any prosecution or disciplinary action, did not result in a referral for prosecution or disciplinary action because of insufficient evidence or because the victim withdrew from the process or was unable to identify the perpetrator or because the victim mislabeled the incident (e.g., gave a truthful account of the incident, but the incident did not meet the legal elements of the crime of sexual assault).  Moreover, another 13.9% contained insufficient information to be coded.

So that leaves 35.3% of the claims that were referred for prosecution or disciplinary action. For those claims, Dr. Lisak offers no opinion as to the propriety of the referral and does not reveal the outcome of the prosecution or disciplinary action. Dr. Lisak did not use an exacting standard similar to the one he used to determine if a claim was "false" to determine whether an actual rape occurred.  We have provided ample evidence on our blogs of wrongful claims that had been improperly or incorrectly referred for prosecution or disciplinary action. In short, of the claims comprising the 35.3%, we have no idea how many were actual rapes.

Thus, it is disingenuous to assert that "only" 5.9% were false claims and to leave it at that without an explanation. It is reasonable to assert that while the number of false and wrongful claims is unknowable, the percentage is considerably higher than 5.9%.  Again, that is not to detract from the seriousness of the rape problem because we have not even discussed the problem of unreported rapes. It is merely to counsel against trivializing the problem of false and wrongful accusations.

Intolerable Trivialization of the Wrongly Accused

The wrongly accused have few resources available to them.  The Innocence Project does monumentally important work in focusing attention on systemic defects that allow the innocent to be punished along with the guilty.  But the Innocence Project was founded "to assist prisoners who could be proven innocent through DNA testing." See here.  Its work is largely confined to DNA exonerations and generally does not assist men and boys who admit to having sexual contact with the accuser, which is the vast majority of rape claims. For many men and boys, our site is among the few outlets to let them know they are not alone. We have received notes from young men who tell us that our blog was instrumental in their decision not to take their own lives. This is a tremendous burden to place upon one unfunded, overworked blog. Yet, sadly, for some, one blog to give voice to the wrongly accused is one blog too many.

We share the concerns of victims' advocates about claims by some so-called men's rights advocates that women routinely lie about rape. We believe just the opposite: given the relative ease with which a false rape claim can be lodged, the fact that there are not many more is a testament to the good will of the vast majority of women. Just as we do not tolerate the trivialization of rape, nor do we tolerate those who trivialize the victimhood of the community of the wrongly accused.