Prosecuting rape allegations

This story has been causing quite a blog buzz: a 19-year-old Oregon woman has been convicted of filing a false police report after accusing her former boyfriend and two other young men of rape.

The standard take on the story is summarized in the headline at Seeing the Forest: Rape Victim Found Guilty. (This post also has a list of other blogs reporting on the story.) The standard reaction is outrage:

The Heretik: “We ignore women when they are raped, then we rape them again with ‘the law’ when the law lets them down.”

Bitch Ph. D.: “Gross.”

Shakespeare’s Sister: “I’ve spent the entire day burning up from the inside out about the Oregon case in which a rape victim was found guilty of filing false charges after prosecutors decided not to purse a case against her attackers. I feel like the sun itself has settled in my gut and any moment I’ll just explode into a puff of smoke and ash.”

Seeing the Forest: “This one is beyond belief. A judge decides that since he doesn’t know who to believe he’ll convict the woman for filing the charges in the first place.”

This last summary, by the way, is really “beyond belief,” because it makes it sound like the judge was hearing the woman’s rape complaint, concluded that she wasn’t telling the truth, and then turned around and sent her to jail. Of course, it doesn’t work that way. The District Attorney’s Office prosecuted the case after dismissing the charges against the men.

Here’s what The Oregonian says:

The Washington County District Attorney’s Office declined to prosecute the case against the men. Robert Hermann, the county’s district attorney, said prosecutors reviewed all the information and statements but didn’t think they could prove a rape allegation.

Ted Naemura, the assistant city attorney who prosecuted the case, said the woman’s false accusations were serious enough to lead to charges. The young men faced prison sentences of at least 7 years and a lifetime labeled as sex offenders. In addition, police spent considerable resources investigating the accusations.

Beaverton has no policy about prosecuting such cases, but reviews each one on its merits, Naemura said. The city prosecuted a similar case a year ago in which a judge ordered the woman to pay $1,100 in restitution for the city’s investigation costs, said Officer Paul Wandell, a Beaverton Police Department spokesman.

The bottom line, Naemura said, is that people can’t use the criminal justice system to further their own ends.

Now, if a woman who has brought a rape complaint was convicted of making a false charge simply because her allegations couldn’t be proven, that is bizarre and outrageous. However, given how uncommon it is for false reporting charges to be pressed against rape complainants, it’s very likely that the prosecutors had some grounds to believe the charges were actually false, not just hard to prove. The judge evidently agreed.

We know very little about the facts of the case or the trial. From The Oregonian, we know that the woman, who was 17 at the time of the incident, said she was sexually assaulted in her 18-year-old boyfriend’s home by the boyfriend and his two friends while getting dressed for a party. The three young men said that the sexual acts were consensual and initiated by the young woman.

After a day-and-a-half trial, Municipal Judge Peter A. Ackerman on Friday convicted the woman of filing a false police report, a class-C misdemeanor. Ackerman explained his decision, saying there were many inconsistencies in the stories of the four, but that he found the young men to be more credible. He also said he relied on the testimony of a Beaverton police detective and the woman’s friends who said she did not act traumatized in the days following the incident.

On the basis of this account, a lot of bloggers have concluded that the judge simply chose to believe the men over the woman, and that he was influenced by a lot of stereotypes about rape victims. Maybe. Again, we don’t really have enough information to decide. Bloggers are also relying on the account of Kevin Hayden at American Street, who was present at the trial, but Kevin himself notes at the end of his post:

(My report cannot be truly objective as I’ve known the victim since she was a baby. I was sufficiently upset at the proceedings that, in the hallway outside the courtroom, I told the prosecutor and lead detective that they were “miserable pricks” and “a disgrace to their profession.”)

Let’s put the shoe on the other foot here. Suppose a man in a he said/she said case had been convicted of rape, and the judge explained that despite many inconsistencies in the stories he simply found the woman to be more credible and besides, a detective confirmed that right after the incident she acted like a typical rape victim. Suppose a strongly critical, pro-defendant account of the trial came from someone who freely admitted that he was not objective due to being a close friend of the defendant’s.

Would anyone be furious about this?

By the way, the bloggers who are writing about this (with one exception) seem to take it absolutely for granted that the young woman in this case is indeed a rape victim, and that the young men are guilty. Why the presumption of guilt? Because “women don’t lie about rape”? Well, sometimes they do, and the trouble is that no one really know how often. The Oregonian article refers to a Portland Police Bureau study which “found that 1.6 percent of sexual assault cases were falsely reported, compared with 2.6 percent of auto theft reports”; the source it cites is Heather Huhtanen, Sexual Assault Training Institute director for the Attorney General’s Sexual Assault Task Force. I tried to trace this figure and found two citations, one to the Nebraska Domestic Violence & Sexual Assault Coalition newsletter, the other to a law review article (the study was apparently done in 1990). I don’t know how the study was done. FBI statistics show that nationally, 8 to 15% of rape charges annually are classified as “unfounded,” though not all these charges are necessarily false. Some studies, including one by the pioneering date rape researcher Eugene Kanin, have shown an even higher rate of false rape allegations; for more discussion, see here and here.

Yes, if the young woman in this case was indeed sexually assaulted, what happened to her was terrible. But I think, for instance, that what happened to this man was also terrible:

The New York Times

March 1, 1997

Rape Charge in Internet Case Dismissed at Prosecutor’s Request

By JOHN SULLIVAN

Charges against a businessman accused of raping a woman he met over the Internet were dismissed yesterday at the request of the Manhattan District Attorney’s office.

Paul K., the defendant, was allowed to go free after a brief hearing in Criminal Court in lower Manhattan. Mr. K. had been free on bail before the hearing.

Prosecutors said they requested the dismissal after investigating the claims of the accuser and reviewing evidence in police custody, including extensive records of computer communications.

Martha Bashford, the assistant district attorney handling the case, said the matter was complicated by “lack of candor” on the part of the accuser, whose name was not released. Ms. Bashford said that after Mr. K.’s arrest on Sunday, prosecutors were able to review computer communications between the suspect and the accuser and a message the woman left on Mr. K.’s answering machine.

Prosecutors said that there is currently no plan to bring criminal charges against Mr. K.’s accuser.

After the hearing before Judge Paul G. Feinman, Mr. K. simply said: “I’m relieved it is finally over.”

However, his lawyer, Paul Goldberg, had harsh words for the police officers who investigated the case. Mr. Goldberg said officers had evidence from the outset “that Mr. K. was not guilty of any crime.”

“She left a message on his answering machine about how much she enjoyed his company,” Mr. Goldberg said.

Mr. K., the owner of a company that installs expensive home theaters, was charged with rape on Sunday after his accuser collapsed in Pennsylvania Station in Manhattan and told police officers that she had been attacked the night before.

The woman, who is a graduate assistant from Syracuse, met Mr. K. over the Internet and traveled to Manhattan to meet him. She said that, after having dinner at Mr. K.’s West Village apartment, she was imprisoned and sexually assaulted.

By the way, while I am not naming the victim in this case (the victim, mostly likely, being Paul K.), but the Times did. Not only that, but when he was arrested, the Times also published a photo of him being led away in handcuffs.

And what happened to this man, who was apparently false accused of rape by two women, neither of whom was punished, was pretty terrible too.

And there are other cases in which men have spent time behind bars on charges that later proved to be false (not cases of mistaken identity, but actual false charges).

There is a notion that it’s almost unthinkable that a woman would make a false accusation of rape because bringing a rape complaint to the justice system is not anyone’s idea of fun. But first of all, it’s not exactly unheard of for people to do irrational things, often for stupid and petty reasons. We don’t find it implausible that someone would commit murder to avenge a trivial wrong or avoid the exposure of an embarrassing personal secret; and yet somehow, we draw the line at a false accusation of rape? And furthermore: has anyone considered the possibility that things that may be excruciating to a real rape victim (e.g., having to face her attacker, to repeatedly and publicly recount the facts of her rape) may not be all that traumatic to a fake victim?

Feminism has accomplished a great deal in challenging once-dominant rape myths (it was only 30 years ago that juries in rape caes, in many jurisdictions, were explicitly instructed that evidence of the accuser’s “unchaste character” could be used to impeach her credibility). But it won’t do to replace them with the “women don’t lie” myth. This idea, for one, runs counter to a basic principle of American justice: the presumption of innocence and the obligation to acquit if there is any reasonable doubt of guilt. Back in 1977, when feminist-initiated rape law reforms were in their early stages, Columbia University law professor Vivian Berger — generally a supporter of these reforms — cautioned against “sacrificing legitimate rights of the accused person on the altar of Women’s Liberation.” And that’s something to keep in mind.

In this case, of course, the young woman was the accused, not the accuser (at least in the case that has just ended). The presumption of innocence should have been on her side, and she should have gotten the benefit of the doubt. I don’t know whether that happened at trial or not. There will be an appeal, and we’ll see what happens. But in the meantime, I think we ought to tone down the rhetoric and try to find out more about the facts.

I don’t buy the overheated rhetoric of some men’s rights activists that these days, all it takes to send a man away to the penitentiary is a woman’s accusation. (Only 45% of rape arrests result in conviction — though, conversely, people who see this relatively low figure as evidence of sexism against women should pause to ponder that conviction rates for robbery are similar, and conviction rates for aggravated assault are far lower.) But sometimes the pendulum has swung too far. When researching my book, Ceasefire, I came across a number of cases in which men were convicted of rape or sexual assault on the testimony of an accuser with serious credibility problems, and on evidence that seemed to leave plenty of room for reasonable doubt (and in some instances, because relevant evidence was suppressed under a very broad application of rape shield laws). And yes, there are other cases in which women who were clearly victims failed to obtain justice because of sexist prejudice. It’s a big country and a complicated legal system; opposite trends can coexist.

The problem is that when there’s injustice toward a female victim, there often follows (rightly) an outcry. (Like when a brain-dead jury acquitted a guy who had broken into a woman’s home and raped her at knifepoint because she talked him into wearing a condom, and they somehow concluded that this signified consent.) When there’s an injustice toward an accused male, the only outcry is from men’s rights activists who are widely seen as a bunch of kooks.

The bottom line: we should be able to care about female victims of rape, and male victims of false accusations. To quote my own article on the subject:

To recognize that some women wrongly accuse men of rape is no more anti-female than it is anti-male to recognize that some men rape women. Is it so unreasonable to think that a uniquely damaging and stigmatizing charge will be used by some people as a weapon, just as others will use their muscle as a weapon? Do we really believe that when women have power — and surely there is power in an accusation of rape — they are less likely to abuse it than men?

Two more of my articles on related topics:

Kobe’s rights: Rape, justice and double standards (Reason)

How much should we know about the sex life of Kobe Bryant’s accuser? (Salon.com)

Side note: The Oregonian article on the case also contains the assertion from the above-cited Heather Huhtanen (Sexual Assault Training Institute director for the Attorney General’s Sexual Assault Task Force) as saying that “about 10 percent of Oregon victims of sex crimes file reports with police.”

Yet according to the Bureau of Justice Statistics, nationwide in 2003, nearly 40% of female victims of sexual assault in the National Crime Victimization Survey had reported the crime to the police. This is lower than for all violent crimes (the overall violent crime reporting rate was 49.9% for women and 45.7% for men), but a far cry from 10%.

54 Comments

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54 responses to “Prosecuting rape allegations

  1. The Heretik

    That is an impressive run down, Cathy. Am adding you to the round up of today’s posts on this at Give Aways

  2. Cathy Young

    Thanks!

  3. Pooh

    Repeat after me…innocent until proven guilty…Though that applies equally to both sides. Without more on the facts, I am skeptical of the accuser’s conviction. Of course a Class C Misdemeanor is roughly the equivalent of a particularly nasty speeding ticket, so it’s not like the judge said “Off to the hooscow with you, you lying hussy.” Of course, might even this punishment have a ‘chilling effect‘ on future victims?

    Similarly, its at least possible that the police investigator (who presumably has some experience and sensitivity in this area) thought that the accuser was full of it, the objective evidence did not support her claim, and so on.

    However, this is likely a case where rational discussion will prove impossible, because no one (who can talk about it, at least knows the facts, and so people will assume facts convenient to their world view.

  4. Ampersand

    Actually, my post on the subject didn’t assume that the woman was guilty or innocent.

    If the Oregonian’s account is accurate, the Judge in essense had a picture of how “real” rape victims allegedly behave, and used the fact that this victim did not behave that way as evidence that she was guilty of a crime. I think that’s ridiculous. And EVEN IF SHE IS GUILTY, it’s still ridiculous; the point isn’t whether or not she’s guilty (something I have no way of knowing), the point is what is or isn’t acceptable evidence of guilt.

    You wrote: and besides, a detective confirmed that right after the incident she acted like a typical rape victim.

    Are you seriously saying that, if the judge cited “she went home and cried in her bedroom” or some other allegedly typical rape-victim behavior as a major reason he found a man guilty of rape, you wouldn’t find that outragious? Geez, I would. That’s simply not strong enough evidence to justify finding someone guilty of a crime.

  5. LetMeSpellItOutForYou

    Just curious: any idea how they determine the percentage of unreported crimes?

  6. LetMeSpellItOutForYou

    Ampersand: if one’s behavior following the incident is the only evidence available, you might have a point, but otherwise it’s perfectly acceptable circumstantial evidence. Women who are raped are usually upset about it, no?

  7. Revenant

    Repeat after me…innocent until proven guilty

    Well, yeah, but she was proven guilty — that was the whole trial and conviction thing. As civilians we might or might not accept that result. But legally speaking, there’s no longer any presumption that the girl is innocent. The presumption is now, as I understand it, that she’s guilty, and the burden is hers to show that she was wrongly convicted or received an unfair trial.

    Something that’s always puzzled me about the court system — if the case comes down to “he said/she said”, with no physical evidence of a crime having taken place, how is that not automatic reasonable doubt? There’s something creepy about sending someone to prison just because his or her accuser seemed trustworthier based on a few hours’ exposure in court.

  8. Jannia

    letmespellitoutforyou: Upset yes, but how that manifests externally varies dramatically between people.

    There have been cases in the past where police/juries have said that a woman isn’t upset because she’s not crying and visibly emotional, which ignores the fact that a certain percentage of people go completely the other way and shut down emotionally when traumatized. (And once that clears try to keep a stiff upper lip in public.)

  9. Ampersand

    Yet according to the Bureau of Justice Statistics, nationwide in 2003, nearly 40% of female victims of sexual assault in the National Crime Victimization Survey had reported the crime to the police. This is lower than for all violent crimes (the overall violent crime reporting rate was 49.9% for women and 45.7% for men), but a far cry from 10%.

    Many other surveys have found that the reporting rate is in the range of 5% to 15%. For example, the Bureau of Justice Statisics study “The Sexual Victimization of College Women” found that about 5% of women who are raped report the rape to police, and the “National Women’s Study” by Kilpatrick et al found that only 16% of rapes had been reported to police.

    I don’t know where Heather Huhtanen’s 10% number comes from, but it’s not out of line with the results of much of the current, best research on rape prevalence.

  10. Ampersand

    Just curious: any idea how they determine the percentage of unreported crimes?

    They do a survey which determines how many of the survey sample have been raped (through asking a series of questions such as “has anyone made you have sexual intercourse by using force or threating to harm you or someone close to you?”). If someone answers “yes” to one of the screening questions, then the interviewer asks a number of follow-up questions, including asking if the person reported the incident to police or other authorities. The answers to these questions are used to calculate what percentage reported the incident to police.

  11. Trish

    letmespellitoutforyou? “Women who are raped are usually upset about it, no?”

    “Upset” could mean many things. Rape victims act in all sorts of different ways. Sometimes they’re angry. Sometimes they cry a lot. Sometimes they’re rational. Sometimes they’re detached. Sometimes they’re numb. I was perturbed by the idea that the Oregon woman didn’t “act traumatized”. Exactly how is a woman who had been raped expected to act? Why is the way she acts important to whether or not she is telling the truth?

    I’m surprised she was found guilty of making a false report. I figured that most likely the case would have been found as unproven, especially since there were discrepancies in her account and in the accounts of the men. Finding accused rapists not guilty does not necessarily mean that the alleged victim was lying. It means that there wasn’t enough evidence to convict.

  12. mythago

    The news story suggested that the judge’s ruling rested on the accuser’s not having acted “properly” for a rape victim, which is what’s fueling a lot of the buzz.

    As has been said elsewhere, there’s an awful lot of information missing from the news story.

  13. Don Porges

    “Upset” could mean many things. Rape victims act in all sorts of different ways. Sometimes they’re angry. Sometimes they cry a lot. Sometimes they’re rational. Sometimes they’re detached. Sometimes they’re numb. I was perturbed by the idea that the Oregon woman didn’t “act traumatized”. Exactly how is a woman who had been raped expected to act? Why is the way she acts important to whether or not she is telling the truth?

    We don’t even have to restrict it to “how women react when they’re raped”, which is something that is not necessarily known to everyone. Surely most people have either been a member of a family that experienced a loss, or known such a family. Isn’t there a huge range of repsonses to the same event by different people? Isn’t there often one person who seems to be holding it together well, while others are sobbing wrecks?

  14. reader_iam

    Cathy, I wonder if Heather Huhtanen might be using an older source, such as this one:

    An FBI Uniform Crime Report in 1990 found reported sexual assault statistics to be just one tenth the number of rapes that actually occur, estimating up to 10 times more go unreported, and even higher for acquaintance sexual assaults.

    I ran across it buried pretty deep in a page about sexual assault statistics at onlinelawyersource.com

  15. reader_iam

    And this article opining on the issue of deterring false accusations, though from 2003, has some interesting thoughts. It’s the bottom 2/3 that contains the meat–you could basically skip the topical Kobe Bryane stuff on the top.

  16. reader_iam

    Oh, and another great job! (I’m beginning to sound like a broken record.)

  17. Pooh

    revenant, as to your first point, you are technically correct. However, just from what is in the news story, it boggles me how a judge could find that the report to police was false beyond reasonable doubt.

    I must point out that it might depend both on the wording of the ‘false report statute’ and the punishment attached. There are substantially lower requirements on proving ‘minor crimes’ with so called ‘strict liability’. How many times have you been found guilty beyond a reasonable doubt of speeding.

    As to your second point, that fact pattern would likely never come to trial. Unless you are a politically minded prosecutor in Colorado of course. More likely (and more common) is the case where there is objective physical evidence of sex, and the only question is ‘consent’. Which is a massively compelex issue – different states use different standards for defining consent, and whether lack of consent is judged by an objective or subjective standard (in some states, if the assailant reasonably believes consent was given, this can mean acquittal , or at least conviction on a lesser included offense.)

  18. Revenant

    revenant, as to your first point, you are technically correct. However, just from what is in the news story, it boggles me how a judge could find that the report to police was false beyond reasonable doubt

    Well, I don’t know what was in the report, so I couldn’t say. Do bear in mind, though, that we as private citizens are under no obligation to consider anyone innocent until proven guilty unless we’re called to serve on a jury.

    As to your second point, that fact pattern would likely never come to trial. Unless you are a politically minded prosecutor in Colorado of course. More likely (and more common) is the case where there is objective physical evidence of sex, and the only question is ‘consent’.

    That sounds like the scenario I was describing (since evidence of sex is evidence neither for nor against rape). If the physical evidence just shows “sex”, and he says “sex” and she says “rape”, it just seems unreasonable to expect that all reasonable doubt could be eliminated just by listening to the two peoples’ stories.

  19. Pooh

    Rev, If that is literally all there is, then you have a terrible case. Technically, you might be able to get a conviction, and it might stick on appeal. But prosecutors generally want more. Friends who can had context, like “she was really drunk. I was worried.” Or something further. I don’t know enough about the pathology of rape to comment authoritatively, but I would imagine that there tend to be physical findings consistent with either resitance or drugging which an investigator would look for before deciding to even charge someone.

    I guess that’s a long-winded way of saying that trials on that exact fact scenario just don’t happen often, even when it may seem he said/she said, there is more, else it would never have made it to trial.

    As to this specific incident, I am curious as to what took the judge out of the grey area of “we’re not really sure what happened” to “she’s lying”.

  20. Cathy Young

    Thanks for the comments, everyone.

    As far as I know, it’s extremely rare for false charges of rape to be prosecuted, unless the woman has actually recanted, or maybe unless a credible witness testifies that the woman has told him she was lying.

    Which is what makes me think that there had to be some angle to this case that made the prosecution think they should go forward with this case.

    Pooh:

    I must point out that it might depend both on the wording of the ‘false report statute’ and the punishment attached. There are substantially lower requirements on proving ‘minor crimes’ with so called ‘strict liability’. How many times have you been found guilty beyond a reasonable doubt of speeding.

    Yeah, exactly. We’re talking about a municipal court and a minor crime in technical/legal terms. I’m sure that if this was about someone falsely reporting (or possibly falsely reporting) a burglary, and they got convicted on the same charge, no one’d be making a fuss. The issue is specifically that she was convicted of making a false charge of rape (and the resonance is more legal than emotional).

    reader_i_am:

    An FBI Uniform Crime Report in 1990 found reported sexual assault statistics to be just one tenth the number of rapes that actually occur, estimating up to 10 times more go unreported, and even higher for acquaintance sexual assaults.

    I think the authenticity of this is very suspicious. The FBI, as far as I know, collects data on crimes reported to the police only.

    Barry, I’ve reviewed a lot of research on rape/sexual assault, and one thing that’s pretty obvious is that there are no truly reliable numbers. For instance: the National Violence Against Women Study, relying on the same survey instrument as Kilpatrick, found only about half the annual number of completed rapes — though about five times as much as the National Crime Victimization Survey.

  21. Ampersand

    Barry, I’ve reviewed a lot of research on rape/sexual assault, and one thing that’s pretty obvious is that there are no truly reliable numbers.

    If that’s what you think, then your criticism of Heather Huhtanen for saying something “a far cry from” one particular study seems particularly unjustifiable. If you’re saying that there are no reliable numbers, then how can you criticize her for not being in line with the unreliable numbers produced by NCVS?

    For instance: the National Violence Against Women Study, relying on the same survey instrument as Kilpatrick, found only about half the annual number of completed rapes….

    Found about half the annual number of completed rapes, compared to which survey? It’s not an essential point, but it seems like part of the sentence is missing (or I’m misreading it), and I’m curious which study you’re referring to.

    Annual numbers are by nature less reliable than lifetime prevalence rates, because annual numbers are relying on far smaller numbers of respondants. (That is, the number of people raped in their lifetime is always going to be much larger than the number of people raped in the past 12 months). However, even measuring lifetime prevalence is difficult, and complex. (For instance, an identically worded question may have different meanings to male and female respondants).

    Still, I think there’s increasingly a consensus among professional researchers about best practices, and about some results. I think very few people who have published recent peer-reviewed rape prevalence scholarship would disagree with me that the NCVS results are considered less reliable than the results of more specialized survey instruments.

  22. LetMeSpellItOutForYou

    Jannia & Trish: a wide range of behaviors may result from being “upset,” including sullen withdrawal. While it’s possible that being gang raped might result in no change of outward behavior in some, it strains credibility.

    Furthermore, Trish: “Why is the way she acts important to whether or not she is telling the truth?” Because in cases in which consent is the only issue being disputed, we often don’t have much else to go on.

  23. Dean

    My suspicion is that, as usual, people are getting all worked up without knowing all the details. I further suspect that, if the news story had been more complete (on reading it, I’m struck by how much it DOESN’T say), most of this controversy would not have erupted.

  24. William R. Barker

    All we know is that the woman was convicted, therefore, it seems only reasonable that the benefit of the doubt be given to the court. Has there been any talk of the men involved launching a civil suit against the woman?

  25. Ampersand

    I wrote: Found about half the annual number of completed rapes, compared to which survey?

    Oh, I get it now – never mind. Duh.

    Reader Jam wrote: And this article opining on the issue of deterring false accusations, though from 2003, has some interesting thoughts.

    Actually, I’d say that article has some pretty horrifying thoughts. The effect of those proposals, if carried out, would literally be to put rape victims on trial without legal representation. Not only is that a very unjust idea, it’s probably unconstitutional.

  26. Revenant

    The effect of those proposals, if carried out, would literally be to put rape victims on trial without legal representation

    So far as I can tell from reading that article, your claim is completely false.

    The article made two proposals: one, to make filing a false claim a felony, and two, to allow for a “not credible” verdict. The first obviously only applies if charges are filed and a prosecution occurs, in which case the so-called “rape victim” will have legal representation and a jury trial.

    In the second scenario, the false accuser isn’t on trial in any sense, literal or metaphorical. The falsely accused rapist is, and wrongly so. The proposal would simply allow a jury to signal that it had found the accusations to be utterly without merit, in order to prevent the accuser from further victimizing an innocent man by filing a civil suit. The accuser herself suffers no legal penalty, unless you consider being denied the ability to file further false charges to be a penalty.

    In any case, it is hard to see what is “unjust” about denying someone the ability file false charges a second time once those charges have been found false once. Nor is it clear what here violates the Constitution, which does not protect the rights of the accuser — only of the accused.

  27. Cathy Young

    Oops, amp — sorry if my wording there wasn’t clear! I’m talking about the number of annual rapes estimated in the Kilpatrick study vs the number of annual rapes estimated in the NAWS (using the same methodology).

  28. Pooh

    Rev, those points are good, so far as they go. However, you are ignoring that modern rape-shields (and other laws) were enacted to combat the defense strategy of ‘putting the victim on trial’, which was both unsavory in practice and certainly disincentivized real victims from coming forward.

    While the proposals you cite would certainly deter false claims, the worry is that they would deter factual claims to an unacceptable degree. In a strictly theoretical sense, you are correct that someone who makes false claims should suffer some penalty. However, especially given the inherent “he said/she said” that element of many such cases you alluded to earlier, the appearance that a victim could be held liable because “they didn’t believe me” is probably a step in the wrong direction.

  29. Revenant

    While the proposals you cite would certainly deter false claims, the worry is that they would deter factual claims to an unacceptable degree.

    In other words, it would deter criminal activity in exchange for requiring marginally greater courage on the part of accusers. I’m fine with that. We’re not supposed to stack the deck in the accusers’ favor for *any* crime, even emotionally charged ones. Rape is traumatic, but it is less traumatic than an undeserved felony conviction.

    However, especially given the inherent “he said/she said” that element of many such cases you alluded to earlier, the appearance that a victim could be held liable because “they didn’t believe me” is probably a step in the wrong direction.

    In a he said/she said there wouldn’t be grounds for a finding of “not credible”, though. Nor would there be sufficient grounds for proceeding with a false-accusation felony indictment.

  30. Ampersand

    Revenant wrote: In the second scenario, the false accuser isn’t on trial in any sense, literal or metaphorical. The falsely accused rapist is, and wrongly so. The proposal would simply allow a jury to signal that it had found the accusations to be utterly without merit, in order to prevent the accuser from further victimizing an innocent man by filing a civil suit. The accuser herself suffers no legal penalty, unless you consider being denied the ability to file further false charges to be a penalty.

    Tell me, Revenant, would you feel comfortable being declared guilty of a felony, by a jury, in a courtroom, if you were guaranteed to suffer only a small legal penalty? Would that be enough to make it okay that you weren’t allowed legal representation or a chance to present a defense to the jury?

    The “not credible” ruling this person proposes is a judgement made in a court of law against the accuser – and one that takes away the accuser’s legal rights. To suggest that alleged false accusers should be found “not credible” and have their legal rights taken away, all without a chance to mount a defense to the jury, is wrong.

    Nor is it clear what here violates the Constitution, which does not protect the rights of the accuser — only of the accused.

    Yes, I understand that the goal is to do an end-run around constitutional rights by putting someone in a court of law, trying them, and punishing them, all without ever making them “the accused.” That way, you can deprive them of the right to a defense and a lawyer. But that’s appalling, any way you slice it.

  31. Pooh

    Rev,

    I’m no expert, but I’m suspect that you do not have an adequate understanding of the psychological difficulties experienced by many rape victims. I’ll leave it to others who know more to explain accurately as to the ‘courage’ issue. Suffice it to say that I think you are being overly dismissive.

    From a legal standpoint, I think you are mistaken when you say that the victim/accuser is given ‘special’ rights in rape cases. Rape is different from most felonies in that consent is a complete defense (except in situations such as a minor accuser or incapacity), so evidence regarding the victim is ‘relevant’ where in most cases it would not be. The result, absent rape-shield laws, is predictable: defense attorneys do everything possible to show that the accuser is of ‘low moral standing’ or some such. If you’ve ever seen this or read a transcript, it’s massively ugly. And surely intimidating enough that many victims chose not to come forward rather than face the inquisition. The threat of actual prosecution seems likely to have a similar effect.

  32. Cathy Young

    I’ve read the article with the proposals.

    I agree with Barry about the “not credible” verdict. It does appear to be the equivalent of convicting someone of a crime and abridging their rights with no legal representation.

    (Parenthetically — I will note that right now, in many jurisdiction, a person can also acquire the functional equivalent of a criminal conviction by having a restraining order issued against them, with none of the legal safeguards of a criminal trial.)

    As for making the false reporting of rape a felony, I agree. On the one hand, it would make the penalties for a false accusation proportional to the offense. And on the other hand, it would ensure that people accused of making a false accusation receive a fair trial under the same standard of proof (“guilty beyond a reasonable doubt”) as other people accused of serious crimes.

    pooh: good points, but I’d like to make a bit of a counterpoint about the rape shield laws. They were originally meant to keep the defense from painting the complainant as a slut, and to that extent they’re of course entirely beneficial. The problem is that all kinds of things that are in fact relevant to the defendant’s innocence can sometimes be excluded under the rape shield law. In one case I’m familiar with, involving college students, the accused man wanted to argue that the woman accused him of rape after a consensual sexual encounter because she was worried that her boyfriend, who had a habit of being jealous, would find out about it. The judge ruled that under the rape shield law, nothing about the woman’s relationship with her boyfriend could be mentioned. Rather ironically, the prosecutor then stressed in his closing argument that the woman had absolutely no motive to lie. (The man was convicted, though his conviction was later thrown out when the appellate courts ruled that even in the woman’s own testimony, there was no evidence of forcible sex.)

    There’s more along these lines in my articles that I linked.

  33. Revenant

    Tell me, Revenant, would you feel comfortable being declared guilty of a felony, by a jury, in a courtroom, if you were guaranteed to suffer only a small legal penalty?

    If I falsely accused someone of rape and suffered nothing more than harsh words from the jury, I imagine I’d feel felling goddamned thankful I wasn’t rotting in prison.

    Look, it’s simple: men are falsely convicted of rape far more often than women who file false accusations suffer penalties for having done so. Ergo we need to either make it easier to nail people for false accusations, harder to convict people of rape, or both. You’ve heard the expression “it is better than ten guilty men go free than one innocent man be sent to prison”? Well, that applies to rape accusations, too. Right now the attitude of people like yourself is that it doesn’t matter how many innocent men we have to send to prison so long as we get a bunch of the guilty ones too. As an innocent man, I disagree. It is better that ten women be raped without successfully prosecuting their rapists than one innocent man be sent to prison for a rape he didn’t commit.

    Yes, I understand that the goal is to do an end-run around constitutional rights by putting someone in a court of law, trying them, and punishing them, all without ever making them “the accused.”

    Well, your “understanding” doesn’t bear much resemblance to reality. There’s no constitutional right to file a suit, and hundreds of years of precendent of courts forbidding people from suing. For example, a judge can dismiss a lawsuit and forbid its being re-filed, all without the accuser having access to a jury. We protect the accused in our legal system. The accuser does not have a Constitutional right to a day in court.

    So no, a person who files a false charge and receives a jury finding saying as much isn’t losing rights without benefit of trial — she’s being denied the opportunity to attempt further violations of somebody *else’s* rights.

    The result, absent rape-shield laws, is predictable: defense attorneys do everything possible to show that the accuser is of ‘low moral standing’ or some such. If you’ve ever seen this or read a transcript, it’s massively ugly.

    Ok, so it’s ugly. There’s no constitutional right to not have to deal with ugliness. There are, on the other hand, numerous Constitutional rights, as well as common law rights, that are supposed to protect the accuser. It isn’t supposed to be the accused’s job to prove the woman consented — it is supposed to be her job to prove she didn’t. “Innocent until proven guilty” applies to accused rapists, not just to those accused of filing false charges.

  34. thecobrasnose

    The blameless husband of a good friend was accused of sexual harrassment by a couple of his disgruntled employees. He was vindicated without too much trouble (though he was suspended while the investigation was in progress), but the scenario where he was fired, defamed, and bankrupted through legal bills was a very real option. I know flogging is out of fashion, but I am not troubled by some sort of punishment befalling false accusers.

  35. Anonymous

    Rev,

    It is better that ten women be raped without successfully prosecuting their rapists than one innocent man be sent to prison for a rape he didn’t commit.

    Actually, that pretty much happens now. I worked at a rape crisis center for a few years. Most women don’t report rape. If they do, most of the time it doesn’t go to trial. The reason for this is that prosecutors are usually elected officials, and they win elections based on how often they successfully prosecute cases. So, if it is too much a he said/she said case and the prosecutor isn’t sure he/she can win, it doesn’t go to trial. That can happen, especially with minors, when the woman is too terrified to resist(so she doesn’t have bruising or tearing), when there are no witnesses, and when the woman didn’t immediately go to the authorities and get a rape kit.

    I admit, while working at a rape crisis center, I only saw one side of this issue. The women(occasionally there was a man, too), who came in for counseling, weren’t the ones making false accusations. Our records were confidential, could not be used in court, and the women were told that their first visit.

    I also want to point out that, while we don’t have sufficient information about this case, what we do know somewhat resembles a woman who came into our center. When she was raped, she completely emotionally shut down(we called it Spock syndrome, from Star Trek). She reported it to the authorities, and the fact that she was cold and business-like during her interactions with the authorities did go against her in court. Her rapist went free, and she had an emotional meltdown a few months later. Last I heard, she was still in counseling.

    When a woman makes a false accusation of rape, it shrinks the already small chances that a real rape victim will get justice. If there is evidence, beyond a reasonable doubt, that those women lied, I agree that they should be prosecuted and should face stiff penalties (not just a class C misdemeanor). I just think that we really have to tread carefully here. It can’t be something that discourages women who have really been raped from coming forward. As it is, it is scary how many rapists are out on the streets.

    (By the way, the stress of that job is why, when I changed careers, I joyfully embraced something as intellectual and unexciting as statistics.)

    Z

  36. Pooh

    Cathy,

    I think both that rape-shield laws are a good idea and that many are too broad or too broadly enforced. The case you mention is instructive, in that the prosecution put the accuser’s history at issue, which to an extent, should make it fair game. But we’re now very far afield of the original point…

    Rev, you are assuming some magical ‘sorting-hat’ between actual false charges, unprovable-but-true allegations, and cases with a strong factual basis. It’s not that simple – the gap between what you know and what you can prove to a jury is often immense. Let me ask you this, in light of both history and statistics (which demonstrate a pretty low reporting rate for sexual assualts) would you prefer over-reporting or under-reporting? Don’t take the baby bear ‘just right’ position – if we are going to err, in which direction should we err?

  37. Cathy Young

    Re “not acting traumatized”:

    Again, we don’t know all of the facts of the case. In fact, we hardly know any of the facts of the case.

    I’d hazard a guess that people would know that “shutting down” and being emotionally numb/stunned is not an uncommon response to trauma. So perhaps that’s one form of “acting traumatized” that they were looking for.

  38. Anonymous

    Cathy,

    I agree that we hardly know anything about this case, and can’t jump to conclusions about what happened. I only brought up that past case to provide some insight into why so many people instantly DID jump to conclusions.

    As for the acting traumatized issue, despite that fact that emotional shut-down is part of the range of normal responses to trauma, judges and juries(more often) are not always sufficiently educated to recognize it as such. In fact, the depth of ignorance about sexual assault and trauma in our jury pool and the incompetance of some judges is pretty shocking, at first. But, I will save my rants about the quality of jurors and judges for another day.

    Z

  39. Revenant

    Actually, that pretty much happens now.

    No, it doesn’t. The scenario you’re describing is that of women refusing to even press charges in the first place. I’m talking about the cases that actually make it to court — in trials, it is better that ten rightfully-accused go free than one wrongfully-accused go to prison. Right now the attitude, amply seen in ampersand’s comments, is that the innocents don’t matter — all that matters is convicting rapists. It is a very dangerous accusers-rights mentality, very much at odds with the way our legal system is supposed to work.

  40. Anonymous

    Revenant,

    Quick clarification of the law.. once a woman reports a rape, it isn’t up to her whether to press charges or not. Rape victims are considered a witnesses to a crime. The DA and only the DA can press charges in a rape case. So, of the women that report rape, few cases go to trial, not because the women don’t want them to, but because the DA didn’t think the case was win-able and/or likely to score them political points.

    Z

  41. Cathy Young

    Re “not pressing charges”: I think Rev is probably referring to women not going to the police in the first place.

    The NCVS asks people who didn’t report a crime against them to the police why they didn’t report it. Interestingly, only about 10% of rape/sexual assault victims in the NCVS said that the reason was that they felt they wouldn’t get fair treatment from the police or that the police “wouldn’t want to be bothered.” 10% cited lack of proof as the reason, and 11% fear of reprisal. 17% said that they didn’t report the rape because they saw it as “a personal matter.” (It should be noted that this is also a common reason for not reporting aggravated assault.)

    Turning to other surveys which show a much higher annual rate of rape/sexual assault than the NCVS, I would venture a guess that most of those incidents are seen by the victim as a miscommunication rather than a crime. Facilitating reporting would not have much of an impact on those cases.

  42. Anonymous

    Cathy,

    The reprisal issue is why legislators took the issue of prosecuting rapes out of the victim’s hands. To many women were dropping charges out of fear of reprisal. Of course, now it puts too much power in the hands of the DA, and ours didn’t like dealing with rape cases.

    That only 10% are worried about the police response just illustrates how far the police have come. State-wide, the rape crisis centers have someone who works with the police and the DA’s office. The give seminars on sexual assault and trauma. They also send an advocate to be with victims during the hospital visit and police interview. Having that working relationship is everything. Although I was a counselor, and seldom went out on rape calls, I have to say my interactions with the police were great. You sometimes get bad eggs too, but most of the cops are wonderful.

    Z

  43. Pooh

    an interesting counterpoint? False statements which led to an execution being investigated…

  44. Cathy Young

    Whoa – thanks for posting that, pooh!

  45. CharlesS

    On the guess that the judge probably knew enough about the behavior of rape victims to realize that rape victims can have a wide variety of responses to their rapes, and that his gut level assumption of how she should have acted was probably wrong, it is worth realizing that Peter Ackerman is a municipal court judge with a corporate law practice. Rape cases would not normally go before a municipal court (that appears to primarily handle traffic cases), so there is no reason to assume that he has had any special training relating to rape.

    Likewise, the Assistant City Attorney, Ted Naemura, is not in the office that declined to prosecute (that would be the Washington County District Attorney), and the City Attorney’s office is not responsible for prosecuting rape cases. Again, there is no reason to assume that he has had specific training in relation to rape cases.

    While prosecution of rape victims for false police reports is extremely rare, the City Attorney’s office of Beaverton has carried out two such prosecutions within a single year, getting convictions in both cases despite the fact that the victim had not recanted, and no damning evidence of lying is apparent. I agree that there is more than what meets the eye going on here, but I think it is related to the City Attorney’s office and to the Beaverton Municipal judges, not to this individual case.

  46. CharlesS

    Pooh, I like how it is the witness pressured by the police to lie who will be prosecuted, rather than being treated as a witness to conspiracy by the police.

    That should help to serve as a deterrent against future witnesses pressured by the police into lying ever coming forward again. Oh wait, maybe that shouldn’t be the goal.

  47. Cathy Young

    I agree that it’s a bad idea for a sensitive issue like this to be handled by a municipal court.

    It would be interesting to see what the county DA’s office thinks of the city DA’s prosecution.

  48. Pooh

    Charless,

    Thanks for the extra info. It certainly tilts me towards a belief that this conviction is a Bad Thing.

    If I made the law, I’d require proof of actual malice (or at least reckless indifference) as elements of a ‘false charge; offense.

    Rev,

    Despite my disagreement with you on where the line should be drawn, you do demonstrate out that there is an inherent conflict between encouraging victims to come forward, and to protect people from false accusations (which on the margins must lead to some false convictions.)

  49. Cathy Young

    I really hope that The Oregonian, or some other local publication, does a long investigative feature on this case.

    One thing I found when researching my book is that a lot of the time, headline-making “outrage” cases turn out, upon a close look, to be substantially different from the headlines.

    For instance: in 1989, there was a widely reported case in which a Florida jury supposedly acquitted a man in a rape case because the victim was wearing a lace miniskirt.

    Then, The Miami Herald ran a long investigative piece by Elinor Brecher about the case, and the facts turned out to be quite a bit different. The facts as outlined in Brecher’s piece strongly suggest that the woman was a prostitute, and while she probably was raped, she told so many lies in attempting to conceal her occupation (and the likely fact that when she was attacked by the defendant, she was hanging out at a truck stop looking for customers at I think 2 a.m.) that the jury couldn’t believe a word she said. And she did have a pretty strong motive to lie, because the case came to the attention of the police when the guy crashed his car and the police showed up on the scene to find him, the woman, and lots of drugs.

    (The main reason I think that the woman probably was raped is that at the time, the guy was already wanted for two rapes in Georgia. In fact, the foreman of the jury that acquitted him said that he hoped the guy would “fry” for the Georgia rapes, and in fact he later got a very long sentence for those — 25 years, I think.)

    The fact that the woman was wearing a lace miniskirt and no underwear was mentioned, but mainly as supporting the claim that she was a prostitute plying her trade.

    I think you can still make a legitimate claim that the woman was a victim of societal prejudice — i.e., that she felt she had to lie because she didn’t think the jury would have a lot of sympathy for her if she said she was raped while turning tricks at a truck stop.

    But it was not a case of the jury saying “rape is okay if the woman is wearing a lace miniskirt.”

  50. Kierkegaard Lives

    What a great post and great discussion here in the comments. I recently posted a link to a similar case in Nebraska where a judge dismissed sexual assault charges. In that case no charges have been filed against the complainant, but I do know that some of the local radio media discussed the question of whether there should be stiffer penalties for false reporting these types of crimes because the accusation itself can be so stigmatizing to the accused.

    It’s an easy case where the accused is guilty. It’s an easy case where the complainant is falsely reporting. The real difficulty is in finding a good balance in the law to deal with those cases where you can’t easily ascertain the guilt of the accused or the truth of the complaint. In those cases there is a great deal of stigma and consequences on the accused, regardless of conviction. On the other hand, any time you talk about increasing penalties for false reporting in this type of crime you also run the risk of making it more difficult or less encouraging for victims to report. I don’t know how you strike that balance, but I think you have to step back and really recognize the validity on both sides of the issue to fully grasp how difficult it is.

  51. Cathy Young

    kierkegaard lives, thanks for the kind words and the link — interesting case!

  52. mythago

    USAF CID reported some years ago that about a third were false as defined by the accuser’s recanting

    I would love to see a cite for this. The Department of Justice, last I heard, found that the false-report rate for sexual assault is about the same as all other crimes.

  53. Cathy Young

    This is a citation for the USAF CID study, which classified 27% of rape allegations as false:

    “False Allegations,” Forensic Science Digest, V. 11, no. 4, Dec. 1985, p. 64, by Charles P. McDowell.

    I’m not sure the Justice Dept. collects data on false reporting of crimes.

    My original post has some data on “unfounded” allegations from the FBI, and false allegations from a study by Eugene Kanin.

    But again, I don’t think there’s any solid information.

  54. ayoungethan

    Cathy Young said “(The man was convicted, though his conviction was later thrown out when the appellate courts ruled that even in the woman’s own testimony, there was no evidence of forcible sex.)”

    It is my understand that rape is technically defined as sex in the absence of consent. In other words, it doesn’t have to be forcible to be rape. Much of the violence that occurs in rape is psychological, which makes sense when attackers are known to the victim (relatives, friends, lovers). In these cases, we’re often pursuing a myth when looking for — and expecting to find — evidence of a struggle.

    Let’s look at an allegorical theft: You let someone you trust and care about into your house. You soon learn that they’re upset with you. Despite telling them not to, they start taking things of yours and throwing them into a bag. When you tell them not to, they yell, “Sit down, shut the fuck up, and stay out of the way!” You’re shaken, and you don’t want things to get worse or even violent, so you comply. They finish taking stuff and leave. You pull yourself back together and call the police. They come to investigate, find the fingerprints of the accused all over the place, but no sign of a struggle or forced entry.

    The above scenario is why I believe so many rape cases are so a) traumatic for the victim b) so “unbelievable” and c) so difficult to successfully prosecute.

    The fact of the matter is rape and other forms of gender-based violence is a huge problem in Oregon. 1 in 6 women are the victim of a forcible rape in her lifetime. I think we’ve gone about as far as we can in the legal arena. We need to start moving from tertiary and secondary prevention activities; that is, stopping attempted rapes and other violence before it even starts.

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