False Rape Accusations, Societal Impacts, and Legal Solutions

Rape, time and time again, have been reported throughout documented human history. From the rape of Lucretius, to the ‘rape’ of Sabine women+ it is not difficult to understand why stringent regulations have been made in regard to prevent the crime. In certain countries, it is even punishable by death. *As a crime against a person, rape brings about horrifying long-term effects to the victim, usually followed by lingering sentiments of guilt and shame. To discuss the notion of falsification might be callous in face of such an atrocious crime, yet to deny the existence of it would be a logical fallacy. Compassion and justice are companions, not choices (1); therefore, we are compelled to analyze and gather information. By doing so, we are not being callous ourselves; instead, we are trying to devise constructive strategies to bring about impartiality and justice.

Of the many debates surrounding the crime of rape, many more arise regarding false accusations. In regard to the rape scandals surrounding business leaders in recent years, most notably Dominique Strauss Kahn, this paper aims to address the issue of false rape accusations. More often than not, false rape allegations are portrayed by media outlets as unfounded rape, which is usually not the case. Unfounded rapes represent the circumstances which undermine efforts to arrest or to convict the perpetrator. False rape allegations, however, solely refer to the deliberate reporting of an unsolicited sexual transgression, when none has taken place. For the sake of specificity and precision, this paper will only cover the later.

Presently, there are many vocal adversaries of false rape allegations. Some consider false rape accusations a pretext for police inaction. Others virtually deny or downplay the existence of false rape as they believe the concept is discriminatory and sexist towards women. (2) Whichever view one might believe, what can be agreed on is that estimates on the prevalence of false rape vary greatly. For example, figures can be as low as 0.25% (3) to 80% (4). For the sake of objectivity, we shall take into account E.J. Kanin’s 1994 study, which is more recent.

Premise:

From 1978-1987, Kanin conducted an investigation in a small metropolitan area in mid-West USA with a population of 70,000. The reason to that was that police force in the area would not be overwhelmed by felony cases, and therefore would have more time and resources to pursue potential rape cases. In addition, agency policy forbade officers to officially acknowledge rape cases upon their own discretion. Moreover, the declaration of false accusation followed a sophisticated procedure. Firstly, an offer to a polygraph test must be made, and secondly, the victim herself must declare the rape is false. A false rape charge would not be declared if for whatever reason the victim fails to cooperate.

Findings:

During this 9-year period, 45 of the total 109 cases (41%) were declared false accusations. This signifies that 41% of complainants admitted that no rape occurred and the charges, in essence, were false. The data showed no significant year-to-year trend, and the percentage ranged from a low of 27% (3 out of 11 cases) to 70% ( 7 out of 10 cases).

Analysis:

The purpose of this paper is not to explore the reasons to false rape accusations, whatever they might be: alibi function, revenge, sympathy seeking etc. Instead, the foci of this paper will be on the societal impact and the legal implications of the aforementioned phenomenon.

In a Business Context:

Much like defamation or libel, false rape have often been used as means to the ends, not only against civillians , but more often, against prominent figures. For example, Brian Banks, former Atlanta Falcons Linebacker, spent 5 of his prime years in jail because of a false rape charge. (5) Roscoe Arbuckle, a famous comedian in the 1920s, was falsely accused of rape and manslaughter. As a result, his film career suffered as a result, even with an official apology from the jury.(6) David Copperfield, the magician, was heckled for two years before the woman who accused him was charged with fabricating sexual assault claims on another man. (7) The argument presented here is that, given the current legislation, certain members of society aren’t protected enough, even though common preconception might say otherwise. False accusations can do irreparable damage to the reputations of business leaders, or in turn, the major corporations or institutions they represent. These companies often have to pay to restore their good names, to say nothing of the costs incurred due to campaigns to regain the public’s faith. The answer to whether their efforts can pay off, oftentimes, remain ambiguous
Legal Implications:

In a sense, false rape accusations are a gender crime that stems from the belief of male violence and female vulnerability. Similar to the criminal black man stereotype, the figure of males as sex offenders has appeared frequently in popular culture and media. (8) Occasionally, this results in frequent profiling and stereotypes from law enforcement agencies, in other words, the assumption that men are Schrödinger’s rapist are made.(9)

In addition, the current law enforcement codes are unfavorable towards the accused. As demonstrated in the Duke Lacrosse Team Case (10), although not all of the 46 Caucasian American members of the team were present at the crime scene, they were ordered to provide DNA samples nonetheless. Moreover, the three real victims of the case, Collin Finnerty, Reade Seligmann, and David Evans were arrested on rape charges respectively between April and May 2006, although DNA tests came back negative. It was not until 7 months later in December that the sexual assault charges were dropped. The remaining charges were dropped in April of 2007.

False rape accusations, like rape, can bring about long-term psychological trauma. The sheer media and public pressure during the trial will be devastating to the accused. For example, Stefan Kiszko, a British man, was pressured into confession by the police and the townsfolk for the rape and murder of a young girl. With the false statements of four teenage girls, Kiszko spent 16 years in prison, and was released in 1992. (11) He became a recluse and, later died of heart attack at his home in 1993. The real perpetrator Ronald Castree was caught in 2005.
The list of wrongful convictions stretches long and extensive. However, in most of these cases, the accusers largely go unpunished. This is particularly intriguing as false accusations in other crimes such as burglary and murder are usually followed by a trial for perjury or litigation for defamation. Therefore, it is beyond comprehension why false rape accusations have a different scale of punishment as rape, a crime that can potentially put the accused behind bars for an average of 11.8 years. (12) Even if the allegations are ultimately proven false, those accused often have their lives turned upside, and find their reputations still suffering even years after the claim. (13) In the case of Jennifer Day, the accused Mr. Saxby was arrested in front of his colleagues, fired, and subsequently had to stay home during and after trial to avoid vigilante attacks. (14) Bottom line, false rape accusations should be punished in the same magnitude as forswearing, the willful act of swearing a false oath or of falsifying an affirmation to tell the truth regarding matters of a legal proceeding. A person convicted in the United Kingdom for such a crime is liable to imprisonment for a term up to seven years. Yet, in the case of Leanne Black, a woman who made five false rape allegations in a span of eight years, a sentence of only two years was given. (15)

In addition to the terrifying experience forced upon the accused, false rape accusations also brings about detrimental effects on the criminal justice system. Former Lord Justice of the United Kingdom Igor Judge once commented on false rape allegations: ‘Every false allegation of rape increases the plight of those women who have been victims of this dreadful crime.’ (16) In a sense, it is a contempt of court; to a more extreme case, it is a crime against humanity. Here, this paper aims to arrive at a solution to stymie the ever-growing trend of false rape accusations.

Solutions:

Judicial systems are far from perfect, and are often in need of reform. However, the principle that everyone is innocent until proven guilty remains unchanged. In light of this, this paper proposes that alleged rapist should be given anonymity until a verdict is delivered. The reason for this is that, as aforesaid, even when the accused is acquitted, large numbers of people continue to assert their guilt. Public ridicule, vigilante justice, and reputation smear are reasons for 44% of false rape cases (17).

One convincing argument against anonymity is that when one victim of a serial offender comes forward, it will encourage other victims of the same attacker to do likewise, greatly improving the chances of securing justice. This paper does not attempt to counter this argument, for it is sound and reasonable; instead, it aims to open up space for compromise.

In the investigation of serial rapist John Worboys, commonly known as the Black Cab Rapist, few of the victims who reported to the police had a particular good recognition of his face. (18) The turning point of the investigation was when the media reported the precise modus operandi of the Black Cab Rapist, at which point many more victims approached the police, piecing together vital information that led to the arrest. Other examples include Wang Yong, a serial killer/rapist known to lure victims from internet cafes in China. (19)

What the above cases suggest is that, in certain situations, publicizing the circumstances and within reasonable details of alleged sexual offences is a much more significant move than naming the offender. Yet, he status quo in most developed countries is that while anyone who claims to be a sexual assault victim is given anonymity for life, someone charged with rape or sexual assault can be immediately named. This is in contrast to the now defunct+ UK Law of Sexual Offenses (Amendment) Act 1976, s4, which grants accused anonymity until convicted.

It is not explained by the United Kingdom Crown Court why the law is not renewed while anonymity protection apply to other complainants whose accusations were founded to be fabricated. (20) In October 2006, Lord Campbell-Savours used parliamentary privilege to name a complainant , going as far to describe her as “a serial and repeated liar” , following a successful appeal by a man who had already served three years in prison for indecently assaulting her. (21) (22) The man’s appeal against conviction was allowed on the ground that there was substantial evidence not adduced at trial - which could other prove the accused’s innocence. Overturning his conviction, the Court of Appeal observed that the circumstances did not provide any power under which it could displace the anonymity provision, and commented:

The judgment we have delivered gives rise to the concern that there may in the future be another case in which this complainant makes similar allegations against another man. If that were to happen, it would be in the interests of justice that the alleged attacker should be able to find out about and use in his defence the information contained in the report of the Criminal Cases Review Commission and referred to in this judgment. Parliament does not appear to have contemplated the risk of a complainant acting as this complainant is alleged to have done. We are concerned that there appears to be no means by which we can displace the complainant's entitlement to anonymity in the interests of justice for any person against whom she may make allegations in the future. (23)

Thus, other than granting the accused anonymity, the paper proposes that, if accusations were found to be false, the disclosure of complainants identity should be allowed. Of course, the actual application of the code should be under the discretion of the court and the court alone. Any divulgement of identity without court decree, in particular by the media, should be deemed as unlawful. Appropriate actions should therefore be taken to curb these illicit activities.

Lastly, more severe punishment for false rape accusations should be inducted. As aforementioned, false rape accusations, like rape, can ruin the lives of the persons involved: psychologically, socially, financially and physically, as accused may be the victim of social stigma, job discrimination, and wrongful vigilante violence. This paper acknowledges the hypothesis that increased sentence may defer women from reporting real cases of rape. Therefore, it does not suggest the immediate follow-up prosecution of any unfounded rape cases, but instead, as of present, accusers go through the process of criminal investigation. If law enforcement agencies believe there is enough evidence to prove malignant intent or otherwise any illegitimate motives as to why these false claims are made, then necessary arrests should be made according to the law. (24) The reason to this proposal is that currently, sentences for false accusations are not even comparable to sentences for perjury or libel. (20) In regard to this, much legislation has to be made to rectify this issue.

Conclusion:
Rape is a horrific offense, and legal institutions must do all they can to protect victims. It is admirable that, men and women alike are trying to raise awareness on the issue. However, a false accusation of rape can also have devastating, life-altering consequences. Society has an obligation to protect the rights of all its citizens– both victims of sexual assault and the accused. Therefore, we must stop downplaying the frequency and seriousness of a certain crime because of the increasing emphasis on the prevention of another. Instead, we should focus on ensuring basic fairness for all citizens, men and women alike. Or else, we might as well resolve to pitchforks and torches.

(2106 words)

Notes:

+ rape is used strictly as a metaphorical sense here as no actual, forcible rape has taken place according to Livy
* for example, India

References:

(1) Coffin, W.S., Credo, (2003, December), Westminster: John Knox

(2) Brownmiller , (1975), Against Our Will: Men, Women and Rape
(3) O’Reilly, H.J., (1984), Crisis Intervention with victims of forcible rape: A Police Perspective
(4) Bronson, F.R., (1918), ‘A Case of Rape on a Young Girl’, American Journal of Urology and Sexology 14, no.2

(5) 60 Minutes, 22nd March, 2013, NFL Dream Delayed by False Rape Charge http://tvbythenumbers.zap2it.com/2013/03/22/nfl-dream-delayed-by-false-rape-charge-60-minutes/174571/ (6) New York Times, 16th April, 2006, Restoring Fatty Arbuckle’s Tarnished Reputation at MoMa http://www.nytimes.com/2006/04/16/movies/16kehr.html (7) Daily Mail, 21st April, 2010, Illusionist David Copperfield’s ‘rape’ nightmare over as model drops two-year-old claim http://www.dailymail.co.uk/news/article-1267765/Illusionist-David-Copperfields-sexual-assault-lawsuit-dropped.html (8) Greer, C., (2003), Sex crime in the media. Cullompton: Willan.
(9) P.Starling, (2011), Schrodinger’s Rapist: A Guy’s Guide To Approaching Strange Women Without Being Maced (10) North Carolina v. Collin Finnerty and Reade Seligmann, FindLaw, (2006, April 17)

(11) Rose, J., Panter, S., Wilkinson, T., (1997). Innocents : How justice failed Stefan Kiszko and Lesley Molseed. London: Fourth Estate.

(12) United States Bureau of Justice Statistics, Selected Findings Number 4, Prison Sentences and Time Served for Violence, April 1995 http://www.bjs.gov/content/pub/pdf/PSATSFV.PDF (13) Lisak,D., Gardinier, L., Nicksa, S.C., Cote, A.M., (2010), "False Allegations of Sexual Assualt: An Analysis of Ten Years of Reported Cases". Violence Against Women 16 (12): 1318–1334

(14) J.Day v Basildon Crown Court [2009], The LawPages.com http://www.thelawpages.com/court-cases/Jennifer-Day-3583-1.law (15) Daily Mail, Woman finally jailed after FIVE false rape allegations against ex-boyfriends in eight years, (2013, July 9) http://www.dailymail.co.uk/news/article-2358759/Leanne-Black-finally-jailed-FIVE-false-rape-allegations-ex-boyfriends-years.html (16) Lord Chief Justice Of England & Wales, Press Regulation, United Kingdom 13th Annual Justice Lecture,(2011, October 19) http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj-speech-annual-justice-lecture-2011.pdf (17) McDowell, C.P., (1985), False Allegations, Forensics Science Digest, 11(4), 58-62.

(18) The Guardian, Women deceived into taking drug with tale of big win at casino, (2009, March 14) http://www.theguardian.com/uk/2009/mar/14/taxi-rapist-women-evidence (19) ABC, Suspected Serial Killer In China Arrested, (2003, November 17) http://www.abc.net.au/pm/content/2003/s991104.htm (20) Legislation.gov.uk, Sexual Offenses Act 2003, (2010, September 14)

(21) HL Deb 19 October 2006 c868

(22) Daily Mail, Innocent man jailed for 3 years over false rape claim – despite police knowing ‘victim’ was a fantasist, (2010, June 18) http://www.dailymail.co.uk/news/article-1287534/Innocent-Warren-Blackwell-served-3-years-false-rape-claim-fantasist.html (23) R v Blackwell [2006] EWCA Crim 2185

(24) Murray (1982) 75 Cr. App. R. 58