False Rape Reports

Although I’ve written a fair amount about the rape prevalence controversy over the years, I haven’t discussed false rape reports. Feminists tend to claim that false rape reporting is relatively uncommon; anti-feminists and men’s rights advocates (MRAs) tend to claim that false rape reports are almost as common as true rape reports.

I haven’t said much because I’ve looked into the research and found it very inconclusive. This Columbia Journalism Review article (link via Julie Saltman at Washington Monthly) sums up the state of the research pretty well. At the low end, some studies and sources have claimed that 2% of rape allegations made to police are false. The FBI finds that about 8% are false. Some studies – most famously one by sociologist Eugene Kanin, examining rape reports in a single, small Midwestern city – have found false reporting rates as high as 41%.

(It should be noted that what many studies report as false reporting rates are in fact recanting rates. However, can we really safely assume that 100% of all women who recant an accusation were not raped? There are other reasons to wonder about the highest numbers. In some studies, police interrogation or polygraph exams were used, tactics which can sometimes lead to false confessions. In other cases, the sample considered – a tiny Midwestern city, women in the military, etc – seems likely to include many women who have a much stronger-than-average motivation to not admit they voluntarily had sex. In no case is the honesty or possible bias of the police investigators ever questioned.)

Both feminists and anti-feminists sometimes talk about this question as if what’s at issue is how honest women are. That’s a mistake – what percent of reported rapes are false says nothing about women in general, or rape in general. As Eugene Volokh points out, since relatively few (I’d argue a minority) of rapes are ever reported to police, even if very few women would ever lie about being raped it’s quite possible to have a relatively high percentage of false rape reports.

Let’s say, for instance, that only 2% of all women age 16-19 would ever lie about rape; and that any particular year, only 2% of that tiny fraction actually do falsely report a rape to the police. So 98% of all women (including relatively young and not very mature women) would never lie about rape, and even of those who might under the right circumstances, most never will. (I use the 16-to-19 age group because the risk of rape is highest there; the same analysis could apply, though, to other age groups.)

There are, however, about 8 million women in the 16-to-19 age group in the U.S., and 2% x 2% x 8 million = 3200 false rape reports per year. The National Crime Victimization Survey (2002 data, see table 3) reports that 2.7 out of 1000 people age 16 to 19, which means 5.4 out of 1000 women age 16 to 19, are raped each year. This is an estimate based on a survey, not on police reports, and it may well be low (the actual rate may be higher) [it almost certainly is higher -Amp]; but in any event, we know that the rate of rapes reported to the police is roughly half that estimated to the NCVS (compare the Uniform Crime Reports data, and remember that the UCR data aggregates rapes and attempted rapes, while the NCVS breaks them out). This means that roughly 2.7 out of 1000 women age 16 to 19 report an actual rape each year, for a total of 2.7/1000 x 8 million = 21,600 true rape reports per year.

Under this model, then, 13% of all rape reports to the police would be false (in the 16-to-19 age group), even though only 2% of all women in that age group would ever make a false rape report, and only 2% of those actually make a false rape report each year. Ninety-eight percent of all women may be completely truthful on this subject, and yet we may still have a substantial false rape report rate.

It’s also important to realize that the connection between false rape reports and false rape convictions is weaker than most people assume. First of all, it’s quite possible to make a false rape report without making a false rape accusation. For example, a teen girl seeking an alibi for staying out late – or for being pregnant – may make up a story of being raped by a stranger. But if all she claims is that a stranger raped her and she can’t identify him, then no one has been falsely accused.

Second, it’s unfortunately possible for a genuine rape report to lead to a false rape conviction. A woman who is raped by a stranger may mistakenly think she recognizes an innocent man; a lot of research has shown that all crime victims, including victims of traumatic violence, are much more likely to make mistaken identifications than most people (and most juries) believe.

Finally, the large majority of reported rapes never lead to convictions at all; and, since false rape reports probably have less evidence supporting them than true rape reports, it seems likely that they lead to convictions even less often. Even true rape reports, unfortunately, are unlikely to lead to a conviction; how much more unlikely when the report is fiction?

None of this is to suggest that it’s ever acceptable to make a false rape report; that a falsely accused man doesn’t suffer unjustly even if there is no conviction; or that any number of false accusations and convictions – however small – is acceptable. Nonetheless, the speculations by some men’s rights activists that there is a nationwide epidemic of men falsely imprisoned for rape don’t seem well founded.

P.S. It’s common, when people discuss this issue, to hear claims that “rape is the only crime where people are convicted based on the word of one witness.” That’s just nonsense; lots of crimes are based on the word of one witness (often a cop). Resisting arrest, assaulting a police officer, drug dealing, solicitation… unless someone happened to take a video, these sort of crimes commonly come down to one person’s word against another’s.

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78 Responses to False Rape Reports

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  5. 5
    Kristjan Wager says:

    It’s common, when people discuss this issue, to hear claims that “rape is the only crime where people are convicted based on the word of one witness.”? That’s just nonsense; lots of crimes are based on the word of one witness (often a cop).

    No one is ever convicted based only on the word of one person. There are a lot of other evidence that has to support the accusations, otherwise it will be dismissed. If I claim that someone, X, beat me up, it has to be shown that it was possible for X to have been at the place, and most often it will also require that there is a motive for X to beat me up. If just one piece of evidence shows that X couldn’t have done it, then he won’t be convicted, no matter how much I insists, or even believe, that he did it.

  6. 6
    Amanda says:

    Thanks for clarifying a lot of the issues at hand. I’m still teed at his offhand comment about women thinking they are raped but aren’t–what does he mean by that?

  7. 7
    piny says:

    If I claim that someone, X, beat me up, it has to be shown that it was possible for X to have been at the place, and most often it will also require that there is a motive for X to beat me up.

    Generally speaking, neither opportunity nor motive are in dispute in “he said, she said” rape cases. Most of the time, there’ s no dispute that the plaintiff and the defendant had sex; the issue is whether or not it was consensual.

  8. 8
    KMarissa says:

    Amanda,
    I don’t really know anything about Eugene Volokh other than what is posted here, so maybe someone better-informed will be able to clarify as to what that comment means, but I read it to refer to cases where a woman had not consented to sex (and therefor felt that it had been rape–justifiably, in my opinion), but where the actual event did not fit the legal definition of “rape.” Traditionally, rape requires force by the perpetrator and nonconsent by the victim. Often courts translate this into meaning that the victim must have resisted (unless she did not resist out of fear for her safety, such as if she is threatened with a knife or gun). So under traditional common law, there is no “no means no” rule, which comes as a nasty shock to women who have heard “no means no” all their lives and believe that the law protects them more than it does.

    For instance, one example would be a woman saying “no” verbally, but doing nothing physically to resist. Even though she hadn’t consented to sex, legally this is not rape, even though it might feel a hell of a lot like it to her.

    Anyway, my two cents on what that probably meant. If anyone better-informed knows otherwise, please correct me.

  9. 9
    Josh Jasper says:

    I don’t think I’ve ever seen an example of a conclusively false rape claim by the victim. Not that such things don’t exist. It’d be interesting to look at one if anyone has a good link to an example.

    That said, here’s one type of rape claim I’ve heard made falsely before: child abuse. I’ve had more than one friend falsely accused of child abuse, including having a kid whisked away by CPS. It’s terrifying to watch that happen to a friend. I can only imagine what it was like for the family. One accusation was made by a teacher who misinterpreted some idle chatter made by a child, and the other claim was made by a parent in a custody case.

  10. 10
    piny says:

    I guess that was unclear. I don’t mean to conflate rape and sex myself, just to point out that this use of investigative thinking sort of misses the distinction. When dealing with date or acquaintance rape–and frequently even stranger rape–there usually isn’t a question that either consensual or nonconsensual sex took place: the most common defense is that the plaintiff didn’t say no, or didn’t say no loudly enough, or said no but then stopped complaining after I’d made it pretty clear I wasn’t listening anyway…. Rape is a kind of battery, touching without consent–that’s what has to be proven.

  11. 11
    Barbara says:

    While I was a law student, there was a case of falsely reported rape that did result in conviction, and thus made the national news. An enterprising FBI agent went back and tried to evaluate common characteristics of what had been more or less agreed by all parties to be falsely reported rapes. Here is how I recall the findings:

    1. True false reports were in the range of 6%. A false report needs to be distinguished from a woman who truly believes that she was coerced, even if her perception turns out to seem unreasonable to jurors. William Kennedy Smith comes to mind as a defendant in this type of case.

    2. Women who falsely reported rapes are more likely to have reported minor injuries that had symbolic value (like lightly carving an initial on someone’s abdomen). People who classify rapes tend to see “accidental” injuries (falling while trying to run away), or traumatic injuries (to the vagina, for instance), but when a rapist inflicts an injury on purpose it does not tend to be minor — in the nature of scratching or biting, but major, as in serious beating. A self-inflicted injury is more likely to be minor.

    3. Details are often vague and do not involve a man that the victim knows. A high percentage of rape victims know their perpetrators, even if only in passing (living in the same apartment complex), and even if they don’t realize it at first (too scared, too dark).

    There were probably others.

  12. 12
    Radfem says:

    “No one is ever convicted based only on the word of one person. There are a lot of other evidence that has to support the accusations, otherwise it will be dismissed. If I claim that someone, X, beat me up, it has to be shown that it was possible for X to have been at the place, and most often it will also require that there is a motive for X to beat me up. If just one piece of evidence shows that X couldn’t have done it, then he won’t be convicted, no matter how much I insists, or even believe, that he did it. ”

    Happens all the time in resisting arrest cases, where it’s one cop, or two cops, or a slew of them backing up the officer involved, who usually has a history of similar cases.

    It’s more unusual when it doesn’t happen. I can think of one case where it came down to the cop, and the defendant and the jury went with the defendant so the guy was acquitted on his testimony, and the lack of convincing testimony(for conviction) from the officer. Exception though, not the rule. Here, if a cop testifies to something, it’s the gospel truth…in at least most white persons’ eyes and they make up most of the jury pool and the juries.

    Resisting arrest cases aren’t investigated by the DA in my county. They come from the agency and are rubberstamped. Other counties are different, b/c of the rampant abuse of resisting arrest/battery of a peace officer type charges being filed to cover up policed abuse.

  13. 13
    Elena says:

    There was a case here in my town where a woman said she was kidnapped and raped, then recanted saying she only wanted a cover story because she had had sex and feared preganancy. I was angry- the story scared all of us here, plus she hurt credibility of other victims. Some people pointed out that she some victims just chicken out and recant, but she was prosecuted for false reporting and made an example of, so I tend to believe she was a flake ( who had never heard of Plan B).

  14. 14
    piny says:

    There are cases across the board of people falsely claiming to be the victims of crimes–insurance fraud is a good example. The problem with rape from a narrow theoretical standpoint is that sex can be consensual and nonconsensual. Someone walking into your home and taking your stereo, not so much. No car thief would claim that you wanted him to drive off in your Lexus. And it’d be really hard to convince a jury that you wanted to get beaten up.

    Apart from this, there’s a huge bias against women who file charges of rape. It’s “He-said-she-said” only in theory; in practice, her testimony is frequently disregarded because, well, she’s a woman.

  15. 15
    djw says:

    Elena–are you in Bellingham/Whatcom County? That reminds me of the teenage girl there who reported being kidnapped, driven around in a white van, raped repeatedly, etc. that had the whole town freaking out and the police searching diligently for the rape van. Similar incident.

  16. 16
    KMarissa says:

    The thought that someone would lie about a rape occurrence is pretty horrible, although I’m sure it happens now and then (thanks in part to our oh-so-healthy stigmatization of non-marital sex), but even more horrible to me is that it further undermines women’s credibility as rape victims.
    This woman’s story is a bit old (1997), but chilling nonetheless. Even for women with the guts to press charges in the first place, it would take a strong person not to recant in these circumstances, in my opinion.

  17. 17
    Rachel Ann says:

    The concept of false confession scares me more than the concept of false accusation. I wonder how prevelant it is for the police, intentionally or not, to talk someone into confessing to something they didn’t do, or taking a greater role than they actually took. I know there have been several stories of the mentally retarded confessing to crimes they are innocent of; I wonder who else is vulnerable to such tactics.

  18. 18
    Sarah says:

    Is it really not rape (legally) if the victim didn’t physically resist? When talking about the possibility of stranger attackes especially, women are often told (in police advice no less) that the best course of action is not to resist, not to try to fight off the attacker, as this may lead to being hurt further or even killed. Verbally resisting, or making excuses like pretending to be pregnant or have an STI, however, are ok…

  19. 19
    Ampersand says:

    Is it really not rape (legally) if the victim didn’t physically resist?

    In US, legal definitions of rape (or sexual assault) vary from state to state. But as far as I know, in every state, it is not necessary for the victim to physically resist for it to be rape.

  20. 20
    rivki says:

    In US, legal definitions of rape (or sexual assault) vary from state to state. But as far as I know, in every state, it is not necessary for the victim to physically resist for it to be rape.

    Amp, you’re right. The legal definition of rape in Virginia (and I think this is pretty standard) requirs that the sexual act be accomplished:

    (i) against the complaining witness’s will, by force, threat or intimidation of or against the complaining witness or another person, or (ii) through the use of the complaining witness’s mental incapacity or physical helplessness, or (iii) with a child under age thirteen as the victim, he or she shall be guilty of rape.

    There is no requirement for the victim to physically resist. However, many juries may not convict unless there is demonstrable evidence that the victim did resist. And that is one of our biggest problems.

  21. 21
    Thomas says:

    Amp, one formulation I have seen that I believe is common is “force or threat of force.” Under this statute, no resistance is required if the rapist threatens the use of force and the victim does not consent. I’m not even sure that saying “no” is absolutely required — I can imagine a factual scenario where the perpetrator brandished a weapon, and a reasonable jury could conclude that he knew damned well that the victim did not consent, even though she was too terrified to speak.

  22. 22
    KMarissa says:

    Thomas,
    That’s true. The common definition that you see very frequently is “with force or threat of force and without consent.” In stranger rape cases, courts and juries usually don’t have a hard time finding these elements; if someone jumps out of the bushes and grabs you, there usually isn’t a question that the act was without consent, and that force was used to grab you and pull you into the bushes. That applies equally if the rapist doesn’t grab you, but jumps out and points a gun at you: that’s threat of force, and courts don’t expect you to fend him off physically.

    Where the resistance aspect usually comes in is where the big question is, what is rape or was it consensual sex?. In the development of rape law, some courts looked at the force/consent requirements and said, okay, put them together, and we’re looking for some sign that the victim resisted, to show that she really didn’t want to have sex. So where this is usually an issue is where (for example), two people are making out or fooling around and the aggressor tries to push things further. Under much current rape law, if the victim just says no, even loudly and clearly, but doesn’t resist physically in any way (and heaven forbid if she were to start kissing him again), she really can’t establish that she did not consent. Under most rape law, she would have to actually push him away, try to pull away, etc., unless she could show that she was reasonably afraid for her safety (such as if the aggressor made threats if she did not comply).

  23. 23
    mythago says:

    Is it really not rape (legally) if the victim didn’t physically resist?

    This was part of the old common-law definition.

    A few months ago, I read an article in Trial magazine (the Association of Trial Lawyers of America’s mag) about suing colleges over campus safety issues. It advised attorneys to interview students, rather than relying solely on campus safety reports, because while few students report rape (by anyone other than a stranger) to police, they almost always tell their friends.

  24. 24
    Thomas says:

    KMarissa, you said:

    “Under most rape law, she would have to actually push him away, try to pull away, etc., unless she could show that she was reasonably afraid for her safety (such as if the aggressor made threats if she did not comply). “

    I’m not familiar with any jurisdiction that, in recent times, has required resistance in consent cases as a matter of law. I think that’s what prosecutors and juries want to see, to overcome the lingering cultural refusal to take women at their word. Are you aware of any statute or case law that says a jury, even if they believe a woman in an acquintance rape situation clearly said “no,” could not convict unless there was evidence to support the conclusion that she physically resisted or was explicitly threatened?

    In fact, that would cut strongly against the public policy evidenced by the prong of many states’ statutes that make sexual penetration of a woman totally incapacitated by alcohol or drugs a rape. See Virginia’s statute (“mental incapacity or physical helplessness”), which Rivki conveniently quoted; New York has a similar provision, as does Illinois if memory serves.

  25. 25
    Brian Vaughan says:

    Rachel Ann, years ago, I was surprised to see one of the TV “newsmagazines” — it may have been 20-20, but I’m not sure — doing a story on how systematically police use psychological manipulation to extract confessions from suspects — and that they can, and do, get anyone to confess to anything. The main tools were sleep deprivation, and persistently questioning suspects’ confidence in the accuracy of their own memories.

  26. 26
    Brian Vaughan says:

    Hmm. In this context, I should add that I am far more concerned with rapes going unreported than false reports of rape. And untrustworthy as the police are, I don’t see any real, immediate alternative to reporting rape and attempted rape to the police.

  27. 27
    jstevenson says:

    “I think that’s what prosecutors and juries want to see, to overcome the lingering cultural refusal to take women at their word.”

    Thomas: Not taking women at their word is a symptom of the disease called BRD (beyond a reasonable doubt). A common jury instruction reads — if there are two equally weighted theories regarding the facts of a case. The law requires that you find the facts in favor of the defendant. Our system requires that the jury take the word of the defendant in most criminal acts. The issue with rape is that it is rare that this principle is evenly followed.

    I have defended and prosecuted many rape cases — all but two were “non-violent” questions of consent (in one the victim said no earlier in the night and the perp got her drunk and . . . ). I have also been involved in some false reports of rape (no injury, no sex, no nothin’) on both sides of the courtroom. These create major problems in the military. These false accusations make it harder for actual accusations of rape to get a conviction. They also lead to the type of incidents that occured in the Air Force. All in all, however, it is easier to get a rape conviction in the military than it is in the civilian sector (well, I can only speak for the Marines). Nevertheless, I think they incorrectly count disputes as to the definition of rape as a false accusation.

    Two people have drunk sex. Both of them were to drunk to remember what happened (drunken amnesia). The girl is embarrassed and is chided by her friends. All she remembers is that he was on top of her. Her friend tells her she was raped and the guy thought they had a good night. Was she passed out or did she just have alcohol related amnesia? He says he remembers her on top at some point, but does not remember anything else. In this case, it was not known whether or not it was rape, but it may be incorrectly labeled as a false rape allegation. I think that is where the higher amount comes in to play. The FBI statistics do not count these instances as false rape allegations. I suspect the men’s-rights groups do.

  28. 28
    KMarissa says:

    Thomas,
    Thanks for replying; I was hoping that someone would be able to give a clearer picture of what most jurisdictions were doing and where the law is going with the force/resistance issue.

    The particular case I had in mind is Pennsylvania v. Berkowitz (537 pa 143), which is a 1994 case. According to Lexis, it’s still good law, although I would be very pleased to discover if this is no longer the case, and haven’t read more than a few of more cases that cite it, so I could have missed something.

    A slightly more recent reference to Berkowitz is Commonwealth v. Fischer (721 A.2d 1111) from 1998. Fischer discussed Berkowitz and subsequent changes to Pa’s sexual assault law. Here’s a relevant quote:

    Our supreme court considered the facts set out above and concluded that the element of forcible compulsion was not established. While recognizing that the complainant said “no” throughout the incident, the court stated that the legislature intended the term forcible compulsion to mean “something more than a lack of consent.” 537 Pa. at 150, 641 A.2d at 1165. Berkowitz’s rape conviction was reversed.
    Less than one year after the Berkowitz decision, the legislature amended the sexual assault law by adding a definition for forcible compulsion. The language of the amendment closely followed that used by the Rhodes court:
    “Forcible Compulsion.” Compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. The term includes, but is not limited to, compulsion resulting in another person’s death, whether the death occurred [*1117] before, during or after sexual intercourse.
    18 Pa.C.S.A. § 3101.

    So it looks like Pa has broadened “force” a lot from the old definition, but it looks like it’s still a requirement in addition to simple lack of consent. A 2000 case, Commonwealth v. Farmer (2000 pa super 202) also discusses Berkowitz as though it still does have some effect:

    In Berkowitz, though, the facts were different than those before us. The complainant in Berkowitz testified that the defendant did not physically or verbally threaten her, she did not attempt to exit through a locked door even though she knew how to unlock it, and she said “no” throughout the encounter. Id. at 1164. By contrast, the victim here testified that appellant pushed her to his car when she was trying to push him away, see N.T., 3/23/99, at 66, she attempted to push appellant away with her bowling ball, see id. at 68, 74, she repeatedly told him “no” and that she wanted to go home, see id. at 69, appellant held her shoulders down with both hands while he had sexual intercourse with her…The case at hand is different than Berkowitz in that the level of restraint and force was much greater here. We have no difficulty in holding that the jury could have found forcible compulsion in this case, and thus that the court below did not err in denying appellant’s motion for acquittal.
    Commonwealth v. Farmer, 2000 PA Super 202, P17 (Pa. Super. Ct., 2000)

    Of course, this is only Pennsylvania… Maybe this state is an anomoly? Also, states do seem to be introducing more laws aimed at alcohol or drug incapacitation, these don’t seem to have those same force requirements. So, hopefully, the law is moving in (what I see to be) the right direction. The only reason I brought up these traditional common law definitions and old interpretations was to answer Amanda’s question about Volokh’s comment regarding “where the complainant sincerely believes the action was rape, but it turns out that it wasn’t.” I believe that this gap in “what she believes is rape” vs. “what actually is rape” is probably this force gap we’re discussing here, but if Pennsylvania is an anomoly and other jurisdictions have dropped the force (or, implicitly, resistence) requirement, then maybe Volokh was talking about something else. Anyone else have some ideas?

  29. 29
    Fred Vincy says:

    Volokh, who refers to “ambiguous situations”, is presumably referring to the “mistake of fact” defense or similar doctrines. Here’s the Supreme Court of California on the topic:

    The mistake of fact defense reflected in CALJIC No. 10.65 has two components. First, the defendant must have “honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse.”… This subjective component involves evidence of “equivocal conduct” by the victim that the defendant mistook for consent….Second, an objective component asks whether the defendant’s mistaken belief regarding consent was “reasonable under the circumstances.”

    People v. Stitely, 35 Cal.4th 514, 26 Cal.Rptr.3d 1 (Mar. 21, 2005).

  30. 30
    KMarissa says:

    Fred,
    Thanks, good point. I hadn’t even thought of that, but it’s definitely a perfect example of a way in which “what she thought was rape” would turn out legally to not be rape. Do you know how commonly this defense is successful, in general? I’d appreciate any info.

    So does this mean that Berkowitz doesn’t really stand anymore? Have other courts rejected it, or it it just being slowly written out of rape statutes? Is it one of those cases that isn’t really overruled, but isn’t really ever followed?

  31. 31
    Fred Vincy says:

    KMarissa,

    I don’t know how often the defense of mistake of fact succeeds. Reported cases tend to address the legal issue of whether the jury should be instructed as to the defense (sometimes yes, sometimes no), rather than what the jury finds. Since most states report only appellate decisions and since usually only the defendant can appeal a criminal verdict, reported decisions will under-represent acquitals. My guess, and it is only a guess, is that the defense doesn’t succeed all that often, but someone on this thread with direct crim. law experience may know better than I.

    As to Berkowitz, each state has its own rules, so Stitely does not directly affect it. However, the Fischer case you cite does indicate that Berkowitz was effectively reversed by the legislature, which re-defined “forcible compulsion” to include “physical, intellectual, moral, emotional or psychological force, either express or implied”. Fischer seems to punt on deciding whether “mistake of fact” is ever a defense in Pennsylvania, holding merely that failure to ask for the instruction was not a basis for reversal on grounds of ineffective assistance of counsel. My search did not reveal any subsequent Penn. cases that answer the question.

  32. 32
    jstevenson says:

    The “mistake of fact” defense has had a chilling effect on rape prosecutions in our local state courts. If there is a military member involved in a rape case under civilian jurisdiction the civilian courts will routinely cede jurisdiction to the military because of the difficulty in proving date rape cases (the colloquial term for “mistake of fact” cases). Marine juries are brutal when it comes to date rape and weighing heavily in favor of the government. If a woman says she said no or “says” she was really drunk you still have a pretty good chance of getting a conviction. This is true even if the accused says she indicated consent (was on top, enjoyed cunnilingus, etc.).

    I have seen convictions where the woman has had sexual intercourse with several people in the same room (ecstasy induced), but did not consent to “that guy“, even when she was kissing all over him. Marines will convict you because you should not have been in that situation in the first place.

    On the other hand, I remember a Cal Supreme Court case last year that ruled — “if a woman withdraws consent, even if giving consent in an earlier moment, ANY subsequent penatration, however slight, is by force and without consent.” That indicates that California, at least, has a more stringent law than the active resistence required in the Quaker State.

  33. 33
    lou says:

    Someone mentioned that they’re more worried about the underreporting of rape than false reporting. A story that stays vividly in my mind ran in a south Florida paper (Sun-Sentinel, I think) and was about the difficulty of getting a conviction if there is no injury.
    In this particular case, a man crawled in through a window and raped the woman at knifepoint. He told the jury a convincing story about how they had met at the apartment building pool and she invited him up and it was all consensual. The kicker of the story is the woman was lesbian but refused to have her sexual orientation brought up during the trial because she thought it not fair to heterosexual women.
    It just illustrated vividly to me how hard rape convictions are to come by.

  34. 34
    Ampersand says:

    On the other hand, I remember a Cal Supreme Court case last year that ruled … “if a woman withdraws consent, even if giving consent in an earlier moment, ANY subsequent penatration, however slight, is by force and without consent.”? That indicates that California, at least, has a more stringent law than the active resistence required in the Quaker State.

    Please provide a link or citation to where the California Supreme Court said exactly those words, please.

  35. 35
    Thomas says:

    jstevenson, I think the Cal court’s position is a no-brainer. If a woman says, “take your penis out of me and go home,” and the man does not do so, it’s rape. Now, it might be hard to get folks to accept that those were the facts, but I can’t see an argument that a man has a right to continue after consent is withdrawn.

    I’m also glad to hear that Marines understand the difference between consenting to fuck lots of people and consenting to fuck every person. I have a hard time seeing what the counterarguments are. I mean, I see why it’s tough to get a conviction on those facts, but I attribute that to prudery, prejudice and patriarchy, not to any logical argument I’d be on board with.

    I think most mistake of fact defenses are really logically weak, and amount to slut defenses. Take the ecstasy/sex party scenario. Why would a woman who had consensual sex with a bunch of people at the same time and the same place fabricate non-consent to one other person? What possible motive could she have to expose her private conduct to public ridicule, unless she had a powerful motivation to be angry at the guy? And what could someone do at a sex party to make someone angry enough to swear out a complaint for rape, other than to commit a sex act which was non-consensual?

    The exception, and the one that burns me up, is the mistake of fact defense that uses BDSM as an excuse. I take that personally, because I’m an S/Mer, and it makes me scared and sick that men defame what I do to excuse rape.

    It’s a stronger defense because it explains away things that otherwise would absolutely negate the inference that the defendant really believed he had consent — saying “no,” screaming, restraint, injuries.

    The other reason it bugs me is that there are times, once in a blue moon (I actually have no quantitative basis to determine frequency, just my gut instinct), when it just might be true — clueless asshole top, bad communication, misunderstanding about what the limits are, and a really bad scene where the woman has been forced to do things she didn’t want to do, but the man actually thought he was giving her the scene she was looking for. (I’m putting no stamp of approval on such men. They’re assholes, and liabilities to the whole BDSM community and the whole human race, and their acts amount to gross recklessness. But recklessness is not the mental state required for rape. )

  36. 36
    jstevenson says:

    I notice that I put the statement in quotes. Not intended; it was not a direct quote from the ruling. It was the statement made by the media. I think they called it the split-second rule. I will look it up. The ruling recieved some press last year, but was overshadowed by the OC rape case.

  37. 37
    Ampersand says:

    I blogged a little about the ruling in this post. If you scroll down to Trish Wilson’s comments, she links to both the decision itself (pdf file) and to her own post on the subject.

    This “Alas” post about rape law in Illinois may also be of interest. Oh, and this one, and this one too.

  38. 38
    jstevenson says:

    Amp,

    The cite is 29 Cal. 4th 756 (Cal., 2003). The opinion resolves the question as to whether post-penetration withdraw of consent is rape or battery. In coming to their conclusion the Court cites penal code 261 and 263. Their analysis blends the two sections together to come to the conclusion that “if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of intercourse . . . any sexual penetration, however slight, is sufficient to complete the crime of rape.”? 29 Cal 4th 756, 761 (Cal. 2003). The court upheld the reasoning in People v. Roundtree, 77 Cal.App.4th 846 (2000). In Roundtree the court stated that “[t]he crime of rape . . . is necessarily committed when a victim withdraws her consent during an act of sexual intercourse but is forced to complete the act. The statutory requirements of the offense are met.”?

    The defense argued that that the male should be permitted a “reasonable amount of time”? in which to withdraw, once the female raises an objection to further intercourse. The full argument by the defense on ended in a horrible display of ineffectiveness (primal urge to reproduce, etc.). The court dismissed the argument, I am not sure if it was because the defense’s “primal urge”? theory was just plain stupid, or that they did not believe the male should have a reasonable time to withdraw. The dissent also found that the opinion was lacking in this aspect.

    “The majority relies heavily on John Z.’s failure to desist immediately. But, it does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force?”? In re John Z, at 767.

    When the media reported this case, it is my impression that they were speaking about the issue brought up by the dissent. Clearly, in the John Z case (assuming her withdraw of consent was clearly stated) there is no question of rape under current law. Nevertheless, right now the state of the law in California is: “if a woman withdraws consent, even if giving consent in an earlier moment, ANY subsequent penatration, however slight, is by force and without consent.”?

  39. 39
    KMarissa says:

    I’m sorry to keep belaboring the point, and I agree that it looks like my earlier-mentioned case, Berkowitz, is pretty much overruled, but I have found a few articles that still claim that force is still frequently required. They may just be faulty statements of the law, but I’d like to find out…I’m not trying to be argumentative, I just really want to understand where the law actually stands on this point.

    For instance, this 2003 article about a lecture by New York University Professor of Law Stephen Schulhofer:

    According to Schulhofer, “Rape is legally defined almost everywhere as requiring compulsion by aberrational physical force.”?
    What this means, is that unless a woman physically fights the offender with extreme force, then the man can not be expected to stop… In his 1998 book, “Unwanted Sex: The Culture of Intimidation and the Failure of Law,”? Schulhofer wrote about the inability of the court of law to see a woman’s submission in a threatening situation as a type of self-protection. Unfortunately, the absence of a struggle can be seen in a court of law as consent. According to Schulhofer, in most states it requires both unwillingness from the victim and physical force from the offender to qualify as sexual assault.

    This article is from the Buffalo Criminal Law Review (found here):

    A handful of state legislatures have made nonconsensual, nonforcible
    intercourse a lesser offense than rape,9 and the New Jersey Supreme Court held in State ex rel. M.T.S. that the statutory requirement of “physical force or coercion”? could be satisfied by proof of “nonconsensual penetration involving no more force than necessary to accomplish that
    result.”?10 But the overwhelming majority of jurisdictions in
    this country continue to require proof of both force and lack
    of consent to support a rape conviction.11

    The article is from 2001, but the law review article that it cites in footnote 11 is from 1998. The relevant part that is cited is this:

    In twenty-eight states and the District of Columbia, only force appears in the statutory definition, although consent is a defense under the case law. 280 In five states, only nonconsent is mentioned to define rape. Fifteen states, as well as the Uniform Code of Military Justice, explicitly require both force and nonconsent to constitute rape [282] and two states appear to require a version of either force or nonconsent. Despite these formal differences in the state codes, in most jurisdictions, if both force and nonconsent are present, the sexual act is rape. If one, but not the other, is present, the sexual act is not rape.
    Courts have concluded that some forced sexual intercourse is, or could have been, consented to, and is therefore not rape. Courts have also concluded that some nonconsensual sexual intercourse is not forced, and is therefore not rape. Reformers have noticed that, despite the abolition of the formal resistance requirement, the courts often rule that no rape occurred even when a woman experienced rape.

    Footnote 282 lists the states that, according to the article, require nonconsent and force:

    n282. See Alaska Stat. 11.41.410(a)(1), 41.470(8)(A) (Michie 1996); Ariz. Rev. Stat. Ann. 13-1401.5(a), 1406.A (West 1989 & Supp. 1996); Del. Code Ann. tit. 11, 775(a)(1) (1995) (“The intercourse occurs without the victim’s consent, and the person inflicts serious physical, mental or emotional injury upon the victim.”); Fla. Stat. Ann. 794.011(4)(b) (West 1992 & Supp. 1997); Ga. Code Ann. 16-6-1(a) (1992 & Supp. 1997); Kan. Stat. Ann. 21- 3502(a)(1)(A) (1995); La. Rev. Stat. Ann. 14:42.A (West 1986 & Supp. 1997); Md. Ann. Code art. 27, 462(a) (1996); Mass. Gen. Laws Ann. ch. 265, 22(a) (West 1990); N.Y. Penal Law 130.05.1, 130.35.1 (McKinney 1987); N.C. Gen. Stat. 14-27.2(a)(2) (1993); Tex. Penal Code Ann. 22.011(a)(1)(A)-(B), (b)(1) (West 1993 & Supp. 1997); Va. Code Ann. 18- 2-61.A(i) (Michie 1996); W. Va. Code 61-8B-2(a) (1997); Wis. Stat. Ann. 940.225(1)(a), (2)(a) (West 1996) (requirement of injury in (1)(a) implies force); Uniform Code of Military Justice, art. 120, 10 U.S.C. 920 (1998).

    1998 U. Ill. L. Rev. 953, 1011

    None of these articles are extremely recent (that is, within the last two or three years) except the lecture by professor Schulhofer, but they are all within the past 10 years. I know huge changes in rape laws were made during the 70′s and 80′s, but have the laws really changed that much since 1998?

  40. 40
    jstevenson says:

    Thanks for the link to your previous post Amp. I have to agree that the story created ample fodder for men’s-rights activists.

    That was an awful case, which always creates awful law. As such, I agree with the premise of the decision whole-heartedly (this is the typical Marine Corps date rape case). However, the dissent sheds light on exactly the type of mentality that creates the illusion of the “false rape” allegation.

    “Hey, I think I should go. My mom may be waiting for me.” “If you love me . . .” I am not sure how the facts actually played out, but these are the problems we face as prosecutors (and defense counsels ) in rape cases. The dissent makes reference to his cast — as if he could not hold her down with a cast. But wait, she did not have bruising on the side of his cast, etc. Those are issues that a critical prosecutor will evaluate when bringing a case to trial. In our civilian jurisdiction, probably would not get a conviction in Superior Court. However, it would probably be a “slam dunk” at a court-martial. As I said, Marines are very critical of people who make poor choices and put themselves in a position to be prosecuted. “hey your sitting at that table, you must have done something wrong”.

  41. 41
    Kristjan Wager says:

    I think that it should be a slam-dunk case – if someone says no, no matter a what stage, it means no. I think most guys have tried that at some time, and respected it (though probably not liked it).

  42. 42
    mythago says:

    jstevenson, I’m guessing that the court didn’t want to get into codifying a rule along the lines of “if she then says no, you get X amount of time to keep going before you have to stop.” Any time they said was sufficient would get gamed by both sides. And technically, they ARE correct: in the absence of consent, any penetration etc.

    As for whether the laws have changed, I picked Alaska because it was first on the list, and there is no requirement of force for sexual assault in the first degree.

    http://www.touchngo.com/lglcntr/akstats/Statutes/Title11/Chapter41/Section410.htm

  43. 43
    KMarissa says:

    If you look only at AS 11.41.410, it does say:

    (a) An offender commits the crime of sexual assault in the first degree if
    (1) the offender engages in sexual penetration with another person without consent of that person;

    But, if you look at the second cite listed, AS 41.470(8)(A), it specifies:

    For purposes of AS 11.41.410 – 11.41.470, unless the context requires otherwise,
    (8) “without consent” means that a person
    (A) with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone; or
    (B) is incapacitated as a result of an act of the defendant.

    So we still have the force requirement for alaska, but again, I haven’t checked the other states.

  44. 44
    Thomas says:

    KMarissa, there’s been a migration in what you’re talking about. Way up there, you said:

    Where the resistance aspect usually comes in is where the big question is, what is rape or was it consensual sex?. In the development of rape law, some courts looked at the force/consent requirements and said, okay, put them together, and we’re looking for some sign that the victim resisted, to show that she really didn’t want to have sex.

    I thought you were interested in whether resistance was required, not whether force is required. With the exceptions of statutory rape, and sometimes incapacitation from intoxication or a few other reasons, generally force or at least threat of force it a requirement. Whether resistance is required is a very different matter.

  45. 45
    KMarissa says:

    Okay, you’re completely right, that’s a distinction that I realize I’ve been too careless with. I know that courts all dropped that “resistance to the utmost” requirement long ago, and that the ‘requirement’ was primarily invented by courts as shorthand for “no consent/use of force” and never actually part of rape statutes. But it seems to me that the two are linked, and, at least some of the time, you can’t look at one without looking at the other. I would argue (maybe wrongly; wouldn’t be the first time) that even if the language of resistance isn’t used by courts anymore, courts still actually look at resistance when they’re talking about force.

    Certainly we can all think of instances of force (maybe in the large majority of cases) where we recognize force as such and don’t look at the victim’s behavior at all. Certainly if someone is grabbed, or if one’s mouth is covered, hands are restrained, etc., force is present. I’m talking about those few cases where the only physical force used was the type of force (and by force, I simply mean physical activity) seen in a consensual relations. For instance, a couple are on a bed, making out. The perp removes victim’s clothes and gets on top of victim, and enters. If the victim did absolutely nothing but remained passive, then there would be no force and therefore no rape (legally), right? However, if the victim had tried to push the perp away, or tried to get up from the bed, or otherwise resisted, even if the court had spoken in terms of force and had said that the perp had restrained the victim, or had used force to continue, isn’t the court primarily looking at the resistance of the victim to determine that the perp had used force? Like, if the perp is on top of the victim and the victim tries to push him away, but cannot because he is too heavy, the “force” that he is using to lie on top of her is the same “force” that any person would use in a consensual, missionary-style encounter. If she tried to push him away but he kept lying there, then isn’t the fact that this becomes “force” primarily resting on the fact that she had resisted? I guess I’m talking about the cases where the use of force is essentially defined by the reaction to the victim’s resistance.

    What if the victim in this example had said no, but still physically remained completely passive? This is the case I really want to know about. If this is (legally) rape, then why have the “force” requirement still present in some of these statutes? Why not drop it? Why is nonconsent actually defined by the use of force in some of these statutes, such as the Alaska one above? These are the cases that I’m really curious about.

  46. 46
    mythago says:

    But it seems to me that the two are linked, and, at least some of the time, you can’t look at one without looking at the other.

    Er, that’s kind of vague. I’m sure it’s true that many juries would think “Why didn’t she resist?” regardless of whether the law mentions either force or resistance.

    You also emphasized only part of Alaska’s statute in a way that, I believe, distorts its meaning. “(A) with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone”.

    In other words, it can be force, OR it can be an implied threat. And the statute makes it completely clear that resistance is unnecessary. It is simply not true that nonconsent is ‘defined by’ the use of force; force is one possible type of evidence of nonconsent.

  47. 47
    Julian Elson says:

    At a Rape Victim Advocates meeting on campus one night a few months ago (I’m not a member: I was just dropping by), they claimed that under Illinois law, rape is determined by lack of explicit consent, not by explicit refusal. They also claimed that under the law, rape could be penetration of orifice by any appendage (so, technically, someone nonconsensually sticking a finger in a person’s mouth could be rape, just like someone nonconsensually sticking a finger in her vagina or a his penis in a person’s mouth is rape).

    I’m not sure they were correct about the law: these were college students, not lawyers.

    The RVA counselors also said that the false report rate on rapes (based on later recants) was about equal to that of carjackings or car thefts generally: I can’t remember which.

  48. 48
    KMarissa says:

    Yeah, I think that there are some jurisdictions that do have an explicit consent rule. I think those are in the minority.. they may not be anymore, if the 1998 articles are out of date. Certainly in those jurisdictions (presumably, anyway), force isn’t a requirement in the statute. I was definitely the one who confused the whole force/resistance thing by not explaining what I meant (I think the actual switch between the two occurred from post 20 to post 24), but the quoting of the Alaska statute was in response to a previous suggestion that force wasn’t required, which it is.
    I agree that “But it seems to me that the two are linked” is vague, but it was just intended to be an introduction to my argument later in the posting: that sometimes force itself is defined by resistance, like in the example I gave further in the article. I’m sorry if I didn’t explain what I meant very well. I have a nasty habit of thinking I’ve expressed myself clearly when it turns out that I haven’t.
    So, let me back up and explain myself. Really, really early on, Amanda asked about Volokh’s statement that he wasn’t including women who thought they had been raped but hadn’t. I suggested (wrongly) that this may refer to cases of inconsent, but where the further requirement had not been met, and so inconsent by itself was insufficient to legally be rape. This is where I was horribly careless with the distinction between force and resistence… and it wasn’t until post 41 that I explained why. No wonder people were confused.
    What I was trying to say in post 41 is that I think there are times where force is actually effectively defined by resistance. For instance, in the example I gave above. If a couple is making out in a bed, and the perp rolls over onto the victim (missionary-style) and starts having sex with her, is this “using force”? If so, then you’re basically defining “force” as any physical contact between two people… if you defined “force” to include normal sexual behavior, such as missionary-style positioning, then you’ve expanded “force” so much that it’s no longer a requirement at all. So why keep it in the statute, why not just look at “nonconsent”? On the other hand, what if the perp had rolled over onto the victim, and she had tried to push him off, or had tried to get out from underneath. His action is still exactly the same. If we’ve already said that “force” means something more than physical contact, and if we agree that in this case the perp used “force,” then it looks like the only thing that makes this behavior “force,” when it wasn’t force before, is the fact that the victim resisted, and the perp didn’t respect that resistance. THIS is what I meant when I said, “the two are linked.” I really should have explained this way way up in the postings. Anyway, hopefully this explains what I mean.
    So, these are the cases, more or less, that I was referring to. These are the cases that I was thinking of when I carelessly used resistance to mean force without explaining exactly what I meant.

  49. 49
    KMarissa says:

    Oh, and just to clarify, I’m sure that juries still look at resistance as a factor whether or not it is actually a part of the law, but that’s not really what I mean here.

    Also, it may help if anyone knows whether/how much rape law has changed since 1998, which is the most recent date for the law review articles and a book (“Unwanted Sex”, summary of which is here) that I was able to find. But in post 35, I linked to an article from 2003 where an NYU law professor claimed that courts still look at resistance. The article stated, “According to Schulhofer, ‘Rape is legally defined almost everywhere as requiring compulsion by aberrational physical force.’ What this means, is that unless a woman physically fights the offender with extreme force, then the man can not be expected to stop. ” Here is the article.
    I imagine that what Schulhofer is talking about is either becoming, or is already, an anomoly, in the sense that it is evident that resistance with “extreme force” is no longer necessary almost anywhere. But this is definitely an argument that resistance is still a factor that some courts consider (not just juries), even if it is not written into the statute.

  50. 50
    ginmar says:

    I have seen convictions where the woman has had sexual intercourse with several people in the same room (ecstasy induced), but did not consent to “that guy”, even when she was kissing all over him. Marines will convict you because you should not have been in that situation in the first place.

    It sounds like you disapprove.
    It’s good to know that some people can see the difference between consenting to kissing and consenting to sex, not to mention, as someone else said, the difference between consenting to sex with some people but not all of them.

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  52. 51
    Idaho Resists says:

    ampersand and the statistical analysis of false rape reports is pretty balanced writing. Joanne Archambault of SATI has posted some recent opinions concerning her expertise and experiences with training police across the country. She rejects the 2% and 8% numbers indicating there is no definitive measure of these numbers. People seek numbers to support their position on the topic, but don’t really understand the numbers anymore than they appreciate the degree of focus placed on rape vs theft or burglary by law enforcement. The microscopic review would tend to find those falsely reporting much more often than other crimes. Kind of comparing apples and oranges.

    Great book just out, Cry Rape, covers rape victim ordeal in Madison, Wis at the hands of the “progressive Madison Police’. Ordered from Amazon, 19.95 I think, got it last night when I got home. Finished reading about 2 a.m. The catch is police don’t believe, change from interviewing a victim to interrogating her as suspect, which results in her saying she falsely reported for one day. Police interrogation produced enought pressure and coercion while she was in the police room. After she was out of their control, she went back to original details. Police file charges due to their perception of false report. Circle their wagons and go after her in a way that shows they do not represent their community, only themselves. They were so confident of what a great job they did until a cold hit years later on DNA that points out she was telling the truth from the beginning. This book should be required reading for all law, crime and justice and people in general.

    My purpose in writing is to encourage a look at Idaho Code 18-6101. For those of you who believe there is no more resistance based rape law, Iam sorry to tell you the great state of Idaho isn’t quite ready to trust a women’s will and consent. Where she resists but that resistance is overcome by force or violence is the guiding language. In the world of law, it doesn’t pay to guess.

    These issues are complex, the individuals are complex, the social norms are complex, and the desire to maintain the status quo means if our current social structure was ever considered “rape supportive”, we can expect all social institutions to work toward keeping it that way. Read Cry Rape and you’ll see what I mean.

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  54. 52
    Darcy says:

    What if I girl accused a man of rape….and told a lot of people that he knows and she knows that he did rape her…but she never went to the police about it. Can he take some kind of action for that? Considering she is spreading the word that he raped her when he in fact didn’t?

  55. 53
    Robert says:

    If he didn’t rape her, then she’s slandering him, and he can sue her. But truth is an absolute defense in slander, so he’d better be sure he can prove innocence.

  56. 54
    Sailorman says:

    Sigh. I always hate answering this, because someone’s going to misread my post and think I’m a rape apologist. Oh well, here goes:

    First of all, I’m assuming in your hypothetical that the man was actually innocent, OK? Note that you don’t say that until the end, but I’m basing my answer on that.

    Anyway, he could in theory sue for defamation and slander, which is the verbal (non written) equivalent of libel. Defamation is quite hard to win. Absent some sort of compelling proof that she was lying, (he was in Europe, and can prove it) he’d probably be stuck.

    I’m not sure about the burden shifting in defamation; I don’t do that area of law. But generally, he’d sue for defamation, and he’d have to prove all sorts of things (including the elusive ‘damage to reputation’.)

    One of the things that she would surely do is to raise the affirmative defense of truth: that he actually DID rape her. Generally, if you are speaking the truth, then you aren’t defaming someone, even if the truth is sufficient to make someone dislike them.

    The next part goes beyond my casual knowledge of defamation law. I’m not sure what the effect is of a truth claim. IOW, I don’t know if SHE has to prove it WAS true, or if HE has to prove it WASN’T true.

    Obviously, disproving a rape is difficult, absent a showing that you couldn’t have had sex at all.

    See, e.g.,
    http://www.expertlaw.com/library/personal_injury/defamation.html

  57. 55
    Darcy says:

    Thank you for your comment Robert. This man is willing to do whatever he can to prove his innocence. Will a lie detector test help prove his innocence?

  58. 56
    Mandolin says:

    Why is this conversation happening here? I’m going to ask that it stop until Ampersand can get here and comment on whether or not he finds it an appropriate subject for the post.

  59. 57
    Robert says:

    That’s bizarre, Mandolin. It isn’t appropriate to talk about (putatively) false rape reports in the “False Rape Reports” thread?

  60. 58
    Mandolin says:

    That’s nice. Stop now.

  61. 59
    Ampersand says:

    Mandolin has a point. This is off-topic for this post, which was specifically about about false rape reports to police.

    That said, given how old this post is, I have no objection to thread drift to a related subject; it’s not like this discussion of false rape accusations not reported to police is preventing or drowning out another discussion going on here.

    I sometimes worry that feminists have given too much ground to MRA priorities when we feel that we have to deny that false rape accusations are a legitimate topic of discussion. (I’m not talking about Mandolin here, I’m just bloviating about the general situation). When we do this, we cede all discussion of false rape accusations to MRAs and anti-feminists, which is a bad thing for us to do.

    I have a cynical view of human nature; anything bad that one person can do to another — however weird, counter-intuitive, or against their own best interests it might be — at least a few have actually done. So yes, some innocents are slandered by false accusations of rape.

    Some things happen much more commonly than others. For instance, I’m fairly certain (but cannot prove) that it’s far more common for a rapist to slander his victim by accusing her of making false accusations, than it is for a false accuser to smear an innocent man with accusations of rape. Pretty much any time a man with any friends at all or any standing in his social circle is accused of rape, his friends and allies will rally around him by saying that the accuser is a slandering liar. Actually, this can happen even if the man is friendless with no social standing.

    If we keep that stuff in mind, there’s no reason that a situation such as the one Darcy describes should be beyond the scope of discussion here, especially in a context where it’s not blocking other discussions from taking place.

    That said, if this thread drifts into anti-feminist territory — not just talking about a particular alleged case of false accusation, but instead endorsing or implying the stereotype that women frequently make false rape accusations, or arguing without solid evidence (not just anecdotes) that a huge portion of rape convictions happen to innocent men, no one ever takes men’s side, etc — then I’ll shut the discussion here down.

    [Post-hoc edited by Amp, before any responses appeared.]

  62. 60
    Silenced is foo. says:

    Oooh, threadsurrection!

    I find it freaky that we can get numbers ranging from 2% to 60% on such an important subject. I tend to distrust either side, and just settle on this knowledge: men and women are capable of doing terrible things to each other, and are capable of being victims. To assign blame to anyone before you know all the facts are in is bigotry, pure and simple – bigotry that extremists on both sides are guilty of. Personally, I think that only a small percentage of rape accusations are false, but still far more than other crimes, and thus enough that you have to keep the possibility in mind.

    Concealing the identity of rape victims from the press is a good idea… but imho, the identity of EVERYONE involved in a sex-crime court proceeding should be concealed from the press until a verdict is in. Rape trials should not be public spectacles.

    Don’t you think the world would be better off if the Kobe Bryant or Duke Lacrosse cases had played out in court _before_ the public finger-pointing began?

  63. 61
    Sailorman says:

    Humans are fallible.

    As a result, some people will be mistakenly (but not maliciously) accused of crimes–misidentification can be a bitch. Rape is certainly not exempt from that. (incidentally, the number of people mistakenly accused is probably larger than the number of people maliciously accused. Those are often mixed up.)

    And of course, some people will be maliciously accused of crimes, where the accuser knows that the accused is innocent. Rape is not exempt from that, either.

    Of those incorrectly accused folks (all non-true accusations), some may even be convicted. Rape is not exempt from that, either.

    What can be DONE about them? Not much, really. Though it hurts to say so. Sometimes there are simply unavoidable consequences of a given system: sort of like “losing” the lottery (as opposed to ‘not winning.’)

    It’s simply a tradeoff. If you want to stop incorrect convictions by changing the court system, you’re going to end up letting more actually-guilty people go. If you want to make it easier to sue people who misidentify their attacker, you’re going to provide a disincentive for reporting–and you’ll end up getting fewer reports. If you want to make it simpler to sue accusers for defamation and slander, you’ll make it less likely that people who are justified in their accusation–but who might have trouble proving it–will accuse the offender.

    I don’t think there’s anything particularly “MRA-ish” about discussing false accusations and the harm to the accused, and I don’t think there’s anything particularly, (um, what’s the opposite of MRA again?) “FRA-ish” about discussing true, unpunished, accusations and the harm to the victim.

    The main thing that rumples my tie is when people (from either side) ignore the tradeoff. There is almost always a tradeoff.

    The tradeoffs may be worthwhile, but they are there.* And I think that acknowledging that is a good way to keep other people from controlling the issue (I agree with Amp.)

    *My favorite example: rape shield laws. Because they are designed to limit the defendant’s ability to cross-examine the accuser, they are, generally speaking, defendant-negative. Therefore, they enhance the likelihood of convicting an innocent.

    Tradeoff? Sure. Worthwhile tradeoff? Yup, absolutely–they offer huge benefits to the victim in comparison to the cost to the accused. It’s better to admit the tradeoff and recenter the discussion to the VALUE of the gains (which is an argument we can win) than it is to deny thetradeoff exists at all.

  64. 62
    Ampersand says:

    To assign blame to anyone before you know all the facts are in is bigotry, pure and simple – bigotry that extremists on both sides are guilty of. Personally, I think that only a small percentage of rape accusations are false, but still far more than other crimes, and thus enough that you have to keep the possibility in mind.

    Is there any solid evidence that rape accusations “are false… far more than other crimes”? (Such as a study of randomly-selected crime reporters subjected to identical treatment to investigate if the report was false, for example, which found that false reports of rape were more common than false reports of, say, arson or robbery or assault?)

  65. 63
    Silenced is foo. says:

    @Ampersand

    No evidence. Just personal experience. I’ve talked to more people falsely accused of sexual crimes than any other thing. That’s why I said it’s just a personal belief, nothing verifiable.

    Iirc, the 2% number exists because it’s lifted from the overall average of falsely-accused crimes (no source, vague recollection here). So, even the 8% from the FBI is “higher than average”. That’s my point. That’s four times more than average, but still a small percentage, like I was saying.

  66. 64
    Sailorman says:

    Amp,

    em’s probably using a different definition of false.

    The standard definition (used when people say “2% of crimes are false reports”) is, AFAIK, that “false” = “malicious.” I don’t think it even includes misidentifications.

    The layperson tends to define “false” as “even if you were right about what you say I did, it wasn’t illegal.” In other words: if I didn’t commit the crime, accusing me is a false accusation. Obviously this is much more prevalent than malicious accusations. This uses the legal definition, which causes a lot of the problem.

    Anyway, in my opinion, it seems fairly obvious the second definition is more likely to result in “false” accusations for rape than for many other crimes. This is because the legal and moral definitions of rape are extremely disparate, while the legal and moral definitions of most other crimes (theft, assault, murder) are more in sync. If you could peek into the minds of thieves and their victims, they’d probably have a vaguely similar idea of what theft is. The same can’t be said for rape–the perceptions are completely different.

    Legal rape is a small subset of moral rape. If you have a large group of victims who believe they were raped (e.g. morally raped) and only a small subset of those rapes are actually legally rape (which is generally the case, because rape LAW doesn’t match rape MORALITY very well), then any defendant who falls in the gray area is going to think they were falsely accused.

    MRAs often take it further still, what with using a finding of “not guilty” to prove the non-existence of guilt. Fortunately that’s been debunked in enough places so it’s getting rarer.

  67. 65
    Darcy says:

    I’m sorry if I was not suppose to ask that question. The subject of this WHOLE website is False Rape….
    I have my answer though so thank you for everyone and their comments!

  68. 66
    Jake Squid says:

    The subject of this WHOLE website is False Rape….

    I’m shocked and depressed by my apparent lack of reading comprehension. All these years spent reading and commenting here and I had no idea! I guess it’s time for some remedial classes for me.

  69. 67
    Mandolin says:

    “The subject of this WHOLE website is False Rape….”

    Did you even read the original post?

  70. 68
    Darcy says:

    I really do not understand the point of that comment Jake…
    I was not trying to be smart or anything like that. I have been searching the web for answers…I came across this website and thought maybe I could get some help here. I didn’t mean to bring up anything that was not suppose to be brought up in here.

    That is all I am saying…

  71. 69
    Darcy says:

    Ampersand…

    I guess I started some conflict in this website and I do apologize. I’m new at this and all I wanted was an answer for my question.

    I will stop posting comments so I do not offend anyone else…but thank you and everyone else.

  72. 70
    Jake Squid says:

    The point of my comment, Darcy, was that “False Rape” is nowhere close to being what this website is comprised of. In fact, even this post on which you have commented is not about “False Rape” in the sense in which you imply. If you look at the right hand column on this page – towards the top of the page – you will see something entitled, “Recently Commented Posts,” which lists post titles that have been commented on recently. How many of those are, even tangentially, about “False Rape?” Of the 18 posts listed on there as of this commenting, only one can be read to match your determination. This one.

    I thought that your comment was pretty funny wrt what I’ve written in the above paragraph and so I commented in kind. I thought my comment was pretty funny and I’m sorry you didn’t get it. That’s what the lack of {humor} tags will do.

  73. 71
    Darcy says:

    WOW!

    I had a question about some one making FALSE RAPE accusations on someone…I’m sorry if I got off the subject from the “18 recently commented posts.”

    You got to be kidding me….I’ve never even used this website before and all I was looking for was one answer!!!!!…I ask a simple question and now I’m lacking humor? Ha I guess….

  74. 72
    Darcy says:

    Maybe I should explain exactly how I got here….

    I went to google…looking for the answer to my question and typed in “False Rape” …A link led me to this website…the very first thing I saw was people having a convo about FALSE RAPE… I did notice that no one had made a comment since April 15th 2007…but I said hey it’s worth a shot…so …I asked the question that I wanted to know….Heaven forbid that I didn’t look at the right column and see that this was not the subject of conversation anymore.

    GET OFF MY A** PLEASE!

  75. 73
    Jake Squid says:

    That’s what I get for trying to hint that a web page comprising a single blog post and its comments does not a website make. That’ll learn me.

    That is all. Carry on.

  76. 74
    Mandolin says:

    Darcy,

    The original post is not about “false rape” exactly. If you scroll up to the top and read the original chunk of text then you’ll understand what the subject of conversation was.

    I’m guessing you’re new to blogs? They aren’t message boards, exactly, which perhaps you’re more familiar with. In a blog, the blog owner (or in this case, one of the blog posters) writes a little mini-essay or article which is called a post. That’s up top. Then people respond to the mini-essay or -article.

    Imagine that there were a bunch of people sitting in a room talking about evidence for global warming, and you heard the word “climate” and so you came in and started talking about el nino. The subjects aren’t unrelated, but they aren’t identical.

    No harm here, and no foul. Don’t worry about it. Just giving you the low down on how the blog thing works so that next time you google and find one you won’t be surprised when people are a little off-put that you’re changing the subject.

  77. 75
    Katie Reed says:

    I am sorry. But, do you work for the Ft. Bend Sher. Dept.
    I was raped/ sautimized at knife point by a stranger on 1/20/08. He used objects that internally injured me – not including losing days/ months of my life b/c I WAS TOO SCARED to even get out of bed. The hospital treated me horibble. I went to my ob 2 days later and said I should have had over 8 stitches – however he did not want to traumatize me further. It took my husband 3 hours to go to the hospital to a rape kit. The responding officers were awful. Acted like it was my fault b/c – what was I doing out when I am married with 3 kids under the age of 4. Answer A: Because I NEVER EVER go out, and my hubby gave me thumbs up as long as I didn’t drive. Wish I would have DWI better than what I went through. MY point is this – my rape was 5 months ago – my detective on the case never did a sketch artist, etc. she did not contact me until a week ago for a video recording – and that was after my atty. sent a complaint and threat to them. I was leaving 3 messages a week for 4.5 mos. – no call backs. Went to her office 2x – she was there and left unexpectidly after my waiting 2 hours and she knowing I was there. My point – the rape victim is treated as the criminal. he is still out there and knows where I live. Have already spent more than 8k on therapy. still no sleep. It is now costing me my marriage as well.
    Not sure if anyone knew this fact – but, if you are raped in texas and your dna goes to the state dps – you are at the bottom of the list vs. someone WHO KNOWS their attacker. i am still 4 months away from being processed.’
    for the women reading this… Live every day as if it were your last – do what you can to help your case – get professional help and follow your heart. for those who are faking a rape case. GO TO HELL. You are taking $ from us taxpayers and time away from what the detectives should be working on. those who say they were raped and were not… they should serve about 6 mos. in jail.

  78. 76
    John says:

    False rape: I’ve always taken the position that rape is a problem and false rape is a problem Each case should be investigated on its’ merits and adjudicated fairly. I’ve also felt that the penalty for false rape claims is much too lenient in most cases. I’m referring to when arrests and especially when imprisonment arises out of this. It saddens me when I hear that a person falsely accused of rape has spent more time in prison than their false accuser even faces.

    I’ve read Ampersand’s posts on it and he is fairly even handed in his approach to it. He writes

    Feminists tend to claim that false rape reporting is relatively uncommon; anti-feminists and men’s rights advocates (MRAs) tend to claim that false rape reports are almost as common as true rape reports.

    http://www.amptoons.com/blog/2005/04/18/false-rape-reports/

    We agree on the observation, but I’m interested in the reason. I think that feminists are stressing a 2% false reporting rate in order to make a utilitarian argument. If only 2% of all rape accusations are false then even if we put an innocent person in prison, society is better off because we put 49 rapists in prison.
    I have one criticism of your posts concerning false rape. You say that in the higher rape studies, police were heavy handed in determining whether a report was false.

    (It should be noted that what many studies report as false reporting rates are in fact recanting rates. However, can we really safely assume that 100% of all women who recant an accusation were not raped? There are other reasons to wonder about the highest numbers. In some studies, police interrogation or polygraph exams were used, tactics which can sometimes lead to false confessions. In other cases, the sample considered – a tiny Midwestern city, women in the military, etc – seems likely to include many women who have a much stronger-than-average motivation to not admit they voluntarily had sex. In no case is the honesty or possible bias of the police investigators ever questioned.)

    Why would you think that a woman who had a stronger than average motivation to not admit to having consensual sex be more likely to recant? I would think they would be more likely to file a false report, but less likely to recant. That should make the number higher. Here are additional problems. Unless the police are as aggressive in determining if a rape accusation is actually false, how do you know that the low number is actually the floor? Unless they check every allegation, how do you know that’s the floor? Statistically, if you only check 10% for the allegations, the biggest number you’ can get, surprise, is 10%. You also assume that all false rape accusations are reported to police. Before you laugh, some people may opt to extort rather than file a rape accusation look at the Michael Jordan, Rick Pitino, and David Letterman cases. There may be shot gun weddings, etc.