Why it's so hard to quantify false rape charges.

The law, lawyers, and the court.
Oct. 1 2009 12:54 PM

How Often Do Women Falsely Cry Rape?

The question the Hofstra disaster left dangling.

How often do women falsely cry rape? Because of the 18-year-old Hofstra student who recanted after telling police that five men had tricked her into a bathroom and then gang raped her two weeks ago, that question has been flying around the Internet. As Cathy Young notes in Newsday, the answers often fall into one of two camps. "Many feminists argue that the problem of false accusations is so minuscule that to discuss it extensively is a harmful distraction from the far more serious problem of rape. On the other side are men's-rights activists, claiming that false accusations are as much of a scourge as rape itself."

But isn't the rate of false rape charges an empirical question, with a specific answer that isn't vulnerable to ideological twisting? Yes and no. There has been a burst of research on this subject. Some of it is careful, but much of it is questionable. While most of the good studies converge at a rate of about 8 percent to 10 percent for false rape charges, the literature isn't quite definitive enough to stamp out the far higher estimates. And even if we go by the lower numbers, there's the question of interpretation. If one in 10 charges of rape is made up, is that a dangerously high rate or an acceptably low one? To put this in perspective, if we use the Bureau of Justice Statistics that show about 200,000 rapes in 2008, we could be looking at as many as 20,000 false accusations.

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Legal scholars used to be routinely suspicious of rape victims. "Surely the simplest, and perhaps the most important, reason not to permit conviction for rape on the uncorroborated word of the prosecutrix is that the word is very often false," a Yale Law Journal article opined in 1952, echoing a view voiced since at least the 17th century. These views remained mainstream into the 1970s, if not later. As Marcia Clark said yesterday  recalling the 1977 rape charges against Roman Polanski, "Those were the days when folks still believed rape was 'easy to charge and hard to disprove.' " And that old adage couldn't have been further from the truth. Prosecutors well knew that unless the victim was Snow White, the case was toast."

You can see what Susan Brownmiller was up against when she wrote her path-breaking feminist tract, Against Our Will: Men, Women and Rape, in 1975.

In her book, Brownmiller said that only 2 percent of rape allegations are false, citing findings by the female police in a New York City rape squad. The problem is that while this statistic has been widely repeated, with dutiful mentions of New York-based "research," no one has ever tracked down its source. This we learned from a comprehensive review of the literature on false rape charges published in the Cambridge Law Journal in 2006. The author, Philip Rumney, finds a couple of small studies that back up the 2 percent claim but isn't confident of their methodology.

Rumney's survey of the terrain is the best we found. He also takes aim at the findings on the other end of the spectrum—the research that purports to show that the rate of false allegations of rape is in the range of 40 percent, as well as the flawed (but often cited) work that makes a crazy high jump to as high as 90 percent. The 40 percent figure is usually attributed to a 1994 article by E.J. Kanin in the Archives of Sexual Behavior. Kanin looked at 109 reports of rape to police in one small Midwestern metropolitan area over nine years. His pool was small. The police he studied always offered the victim a polygraph—perhaps signaling they doubted her veracity. And Kanin himself "warns against generalising from his findings" and points to reasons for questioning them, as Rumney explains.

The hugely high 90 percent false rate is several degrees more suspect. The citation for it is usually a study in Scotland by police surgeon N.M. MacLean of only 34 rape complaints made from 1969-74. Complaints were labeled false if they were made after a delay. Or if the victim didn't look "disheveled" or upset or seriously injured. But those factors don't necessarily indicate that a rape charge is trumped up. When police use stereotypes about rape to sort real allegations from false ones, they can do victims a real disservice, as this model paper from the Oregon Attorney General's Sexual Assault Task Force explains. In a 1981 study of 16 reports that claimed the victim admitted to making it up in 14 of them, one case was disproved because the police decided the woman was too large for the alleged rapist to have taken off her "extremely tight undergarments" against her will. Need we say that this not the critical eye we want from the cops?

Rumney's smart debunkings leave us with a group of American, British, Canadian, and New Zealand studies that converge around a rate of 8 percent to 10 percent for false reports of rape. Not all of these studies are flawless, but together they're better than the rest of the lot. They include a massive 1997 report on sexual assault by the U.S. Department of Justice, which includes data from 16,000 local, county, and state law enforcement agencies. The DoJ found that "in 1995, 87% of recorded forcible rapes were completed crimes and the remainder were classified as attempts. Law enforcement agencies indicated that about 8% of forcible rapes reported to them were determined to be unfounded and were excluded from the count of crimes."

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