The Controversy over Unfounded Accusations
Rape always has been in a class by itself in one peculiar way: The complainant immediately con- fronts a credibility issue. For hundreds of years, it has been asserted that spiteful women “cry rape” to
get revenge against men who spurned them. Deep concerns about the danger of false accusations against innocent men led to the insertion into the legal system of special safeguards to protect male defendants—which female accusers had to sur- mount. Knowingly and maliciously filing a false complaint with the police and testifying dishonestly are punishable acts no matter what the crime, but fears about maliciously concocted charges arise almost automatically in rape cases (see MacDonald and Michaud, 1995; and Lisak et al., 2010).
Two errors are possible: One type is honest mistakes in which victims accidentally misidentify
Your character is an open subject of discussion and innuendo. The defense is allowed to question you on inci- dents going back to your childhood. The jury is never told that the defendant has two prior convictions for the same offense and has been to prison three times for other crimes. You sought help from a counselor to deal with the shatter- ing effect of this crime on your life. You told him about your intimate fears and feelings. Now he has been called by the defense and his notes and records have been subpoenaed.
You are on the stand for hours. The defense does its best to make you appear a liar, a seductress, or both. You know you cannot relax for a moment. Don’t be embarrassed when everyone seems angry because you do not understand. Think ahead. Be responsive. Don’t volunteer. Don’t get tired.
Finally, you are finished with this part of the night- mare. You would like to sit and listen to the rest of the trial but you cannot. You’re a witness and must wait outside. The jury will decide the outcome of one of the major events of your life. You cannot hear the testimony that will guide their judgment.
The verdict is guilty. You now look to the judge to impose a just sentence.
The Sentence
You expect the sentence to reflect how terrible the crime was. You ask the prosecutor how this decision is reached and are told that once a defendant is convicted he is interviewed at length by a probation officer. He gives his side of the story, which may be blatantly false in light of the proven facts. A report that delves into his upbringing, family
relationships, education, physical and mental health, and employment and conviction history is prepared. The officer will often speak to the defendant’s relatives and friends. Some judges will send the defendant to a facility where a complete psychiatric and sociological work-up is prepared. You’re amazed that no one will ever ask you about the crime, or the effect it has had on you and your family. You took the defendant’s blows, heard his threats, and listened to him brag that he’d “beat the rap” or “con the judge.” No one ever hears of these things. They never give you a chance to tell them.
At sentencing, the judge hears from the defendant, his lawyer, his mother, his minister, and his friends. You learn by chance what day the hearing is. When you do attend, the defense attorney says you’re vengeful, and it’s apparent that you overreacted to being raped and robbed because you chose to come and see the sentencing. You ask permission to address the judge and are told that you are not allowed to do so.
The judge sentences your attacker to three years in prison, less than one year for every hour he kept you in pain and terror. That seems very lenient to you. Only later do you discover that he’ll probably serve less than half of his actual sentence in prison because of good-time and work-time credits that are given to him immediately. The man who broke into your home, threatened to slit your throat with a knife, and raped, beat, and robbed you will be out of custody in less than 18 months. You are not told when he will actu- ally be released, and you are not allowed to attend the parole release hearing anyway.
SOURCE: Excerpted from the report of the President’s Task Force on Victims of Crime, 1982, pp. 3–11.
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assailants and innocent men get arrested, put on trial—and if the mistake is not caught—even con- victed and imprisoned. The other type of error is inexcusable: knowingly lodging a false complaint against an innocent male.
A complainant acting in good faith may iden- tify the wrong person—especially a complete stranger—as the perpetrator (this would not be a problem in acquaintance and date rapes). DNA tests make it possible to scientifically eliminate some male suspects and to rectify preexisting miscarriages of justice by casting aside convictions and freeing wrongfully convicted men from their prison cells (for example, see Thompson-Cannino and Cotton, 2010). By 2013, about 220 men had their rape convictions overturned based on an analysis of DNA evidence (National Registry of Exonerations, 2014).
Besides the possibility of honest mistakes, fraudulent accusations are another area of legitimate concern. A girl or woman could attempt to deceive authorities by lodging a fake charge against an inno- cent boy or man for one of many ulterior purposes: perhaps to arouse sympathy or to gain attention; to punish a former lover; to provide a “don’t blame me” explanation for contracting an embarrassing venereal disease or for becoming pregnant as well as for seeking medical treatment for these condi- tions; to justify a suspicious absence to a parent or a significant other; or to hide the truth for another reason (see Dedel, 2011).
Widely held negative stereotypes and suspi- cions about manipulative or vengeful women fuel these fears. Highly publicized real-life exam- ples give renewed life to traditional doubts that cast a cloud of suspicion over the credibility of all genuine victims who demand to be taken seri- ously. False accusations of sexual assault lodged by dishonest complainants posing as victims also send shock waves within the criminal justice process and threaten to undermine much of the progress made by the antirape movement. Well-known cases like these three are often cited to justify the skepticism that complainants routinely encounter in press coverage, police stations, prosecutors’ offices, and courtrooms:
A 22-year-old woman gets drunk and ditches her girlfriends to get into a car with a 27-year-old man she just met. When she returns they are so furious with her that they beat her, so to gain their sympathy she claims that he raped her at knifepoint. She tes- tifies that she is “110 percent sure” before a grand jury and at a trial against the man, who has a rap sheet of violent assaults. He is convicted and serves nearly four years before she confesses to a priest, submits to a DNA test that clears him, and recants her perjured testimony. The falsely imprisoned man is released and the judge sentences her to three years in prison for framing him. “I can honestly tell you that to this date I have no idea how I got myself into this mess … I want him to know I will carry this guilt for the rest of my life,” she says, pleading for mercy. (Italiano, 2010)
A 15-year-old black girl is discovered in an apparent state of shock curled up in a plastic garbage bag, smeared with feces and with racial slurs scrawled on her body. She does not say much to police officers or doctors but according to her relatives and her advisors, she had been kidnapped and repeatedly raped for several days by four white men who appeared to have law enforcement affiliations. Her explosive charges divide the public along racial lines. A special grand jury is impaneled by the state’s attorney general to look into the inflammatory accusations and to explore the possibility of an official cover-up. It concludes that there is insufficient evidence to charge anyone with a crime. Months later, the girl’s boyfriend claims that she told him that she and her mother made up the whole story so that her violence-prone stepfather (who served time for killing his first wife) would not beat her for staying out late. Unfortunately, an aunt who believed the story contacted the news media, which sensationalized the concocted allegations into head- lines for months. Years later, one of the maligned men, an assistant district attorney, sues the supposed victim and her advisors in civil court for defamation of character and wins a monetary judgment against them; her advisor becomes the host of a television talk show but her lawyer is disbarred; she goes to college, undergoes a religious conversion, changes her name,
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and moves to a small town. Her mother still insists a rape took place and urges the governor to reopen the case. Unapologetic, the hoaxer very slowly pays off the judgment through garnisheed wages to the former prosecutor she slandered. (Payne, 1989; Taibbi and Sims-Phillips, 1989; Schaye, 1998; Block, 2007; and Gartland, 2013)
Two women are hired as strippers to perform at a party for the young men of a university lacrosse team. One of the dancers says she was hustled into a bathroom and sexually assaulted by three players. Three members of the team are arrested and indicted for rape, sexual offense, and kidnapping, even though highly sensitive genetic tests do not reveal any DNA trace evidence from them, and she is unable to iden- tify her attackers from team pictures. The university president cancels the remainder of the lacrosse season, the coach resigns, and the three players are suspended pending a trial. The highly publicized case touches off scathing commentaries about the sense of entitlement privileged young white men feel toward exploiting poor young black women. But then the case unravels, the mentally troubled exotic dancer becomes uncertain about what really happened, and the veteran prose- cutor who had just been reelected resigns in disgrace and is disbarred. The young men who were falsely accused, publicly humiliated, and traumatized by the prospects of 30-year sentences file lawsuits against the former prosecutor, the police department, the DNA lab, and the city, charging them with premeditated police, prosecutorial, and scientific misconduct. Five years later, the woman who lodged the false accusa- tions graduates from college and writes a memoir, but then is arrested twice for armed attacks against two different boyfriends. (Brooks, 2006a; Nizza, 2007; Wilson, 2007; and Rodriguez, 2011)
The 1931 “Scottsboro Boys” case stands out in history as the most notorious example of a false accusation of rape for a malicious purpose. The apparently trumped-up charges—that eight young black men gang-raped two white women riding with young white men in a boxcar of a freight train—were lodged for political reasons. In the
Old South, white women were often pressured by white men to accuse black men of rape so that the alleged suffering of the victims could be seized upon to justify the execution or lynching of the accused individuals, and by extension to legitimize the segregation and repression of all black men (Sagarin, 1975). The controversy surrounding the way the defendants in this case of Southern “racial justice” were “railroaded in a kangaroo court” without lawyers and sentenced to die led to a Supreme Court decision (Powell v. Alabama, 1932). This landmark ruling established the right of indi- gent people accused of capital crimes to be repre- sented by competent counsel provided by the government at no cost (later decisions extended this right to all defendants).
The task confronting detectives and prosecu- tors is to weed out the very small number of false claims (about a consensual act that is later character- ized as forced, or about a totally fabricated incident that never took place) from the overwhelming majority of genuine charges. The dishonesty of a few does not justify routinely mistreating all com- plainants as possible liars (Fairstein, 1993). This issue of victim credibility can become very polarized and emotional when those who believe in “lying women” debate those who trust that “women wouldn’t lie about a matter as serious as this.” The task for criminologists and victimologists is to determine how often completely baseless charges are lodged and whether false accusations really are more of a problem in rape cases than in other crimes such as robberies or car thefts (see MacDonald and Michaud, 1995).
From the outset, careless phrasing and impre- cise language and terminology can cause great confusion. What is the exact definition of a false allegation? Policies adopted by law enforcement agencies state that a determination of whether or not a complaint is false—meaning that no crime was committed or even attempted—can be made only after a thorough investigation. A basis for concluding that a sexual assault never took place could include physical evidence or statements from credible witnesses that clearly contradict what the complainant asserts. But unearthing
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evidence that undermines the accuser’s credibility (for example, that she delayed filing a complaint; or gives inconsistent accounts of events; or changes her mind and stops cooperating; or leaves out embarrassing details like being intoxicated) does not definitively mean that the incident never hap- pened. If an investigation fails to dig up solid evi- dence that a sexual assault occurred, then the charge is to be classified as “unsubstantiated” but that is not the same as “unfounded” or “deliber- ately false” (see Lisak et. al, 2010).
Given these complications, reliable statistics about the percentage of complaints that turn out baseless are hard to find. Social workers at a hospital and a police sex crime unit estimated their false complaint rates to be less than 2 percent (Bode, 1978). The prevalence of false allegations ranges from 2 percent to 10 percent of all charges, accord- ing to a review of previous studies plus an analysis of university records over a 10-year period (Lisak et al., 2010). But a controversial study concluded that 40 percent of more than 100 complaints turned out false—the woman recanted her original charges when told that she faced a stiff fine and a jail sentence—according to records from 1978 to 1987 of a police department in a small Midwestern city (Kanin, 1994). But some victims under intense pressures might recant charges that actually are true (see McArdle, 2014).
The FBI’s UCR reported that in 1966, after a preliminary investigation, police forces across the country had declared 20 percent of all rape com- plaints unfounded. Ten years later, the UCR stated that 19 percent had been closed as unfounded. The UCRs for 1996 and 1997 stated that about 8 per- cent of all rape complaints were classified as unfounded by local police departments, compared to 2 percent of complaints about other index crimes. No such figures have appeared in the UCRs since then. Note that the designation unfounded is not synonymous with “patently false.” Some cases in this category were deemed unsub- stantiated after an inconclusive investigation or unprovable in court in the opinion of detectives. But that doesn’t mean the allegations were baseless or that accusers were deliberately committing
perjury or imagining situations that didn’t really happen (Archambault, 2005).
Police departments that consider too many sex- ual assault complaints to be unfounded or untrue can find themselves under scrutiny. For example, in Baltimore, reported rapes tumbled so dramati- cally that investigative reporters looked into the matter and discovered that for about 10 years offi- cial statistics were suspiciously low. It appears that officers often refused to accept complaints at crime scenes, or that detectives asked such hostile and confrontational questions that complainants stopped cooperating. Because the sex crime unit declared about one-third of all complaints to be unfounded each year, it became the target of an investigation (Fenton, 2010).
In the past, detectives often presumed that false cries of forcible rape were the rule and not the exception. They were especially suspicious if the woman did not report the attack immediately or didn’t seem upset by her injuries. Her credibility was questioned if she was either extremely vague about the details or unusually precise, or was reluc- tant to describe the assailant or the exact location. Their disbelief of her story escalated if she was intoxicated at the time, had filed complaints before, or had a history of emotional problems (Jordan, 2004; and Archambault, 2005).
Consequently, many police departments rou- tinely administered lie detector tests to check a complainant’s credibility. Unfortunately, submit- ting to the questionable reliability of a polygraph looms as an added indignity and served as a further deterrent to reporting crimes and pressing charges. Groups in the antirape movement—who are con- vinced the problem of false allegations is greatly exaggerated—went to court to get injunctions against the practice. The President’s Task Force on Victims of Crime (1982) recommended that procedures that reflected automatic distrust of com- plainants be abandoned, and a number of states have specifically outlawed polygraph testing of complainants. The Violence Against Women Act reauthorization in 2005 stipulated that subjecting rape complainants to polygraph testing could jeop- ardize a department’s eligibility for federal aid.
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However, reports surface periodically that police departments still administer polygraphs and other truth verification tests such as computerized voice stress analyzers to certain categories of sexual assault victims (“Report exposes lie detector tests…,” 2003; see also Lisak et al., 2010).
Because of the credibility issue, very stringent standards of proof were crafted into rape laws to make it particularly difficult to secure convictions. The men who wrote the laws and administered the legal system considered these difficult- to-surmount hurdles to be safeguards against mis- carriages of justice. But from the standpoint of a genuinely innocent victim, the safeguards posed major obstacles that discouraged and thwarted her pursuit of justice. From a feminist perspective, truth tests represented a clear case of institutional- ized discrimination against female complainants. The exceptionally high standards of proof took several forms: demands for evidence that the accuser did not willingly consent to engage in sex, a requirement that her testimony be corrobo- rated (backed up independently), and a tradition that she undergo a particularly vigorous cross- examination by a defense attorney during the trial. After both sides rested their case, a judge often delivered a “cautionary instruction” to the jurors before they began their deliberations, para- phrasing an English jurist’s warnings from 1671 that it is easy to accuse a man of rape but hard to prove the charge, but it is even harder for an inno- cent man to defend himself and clear his name.