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Crying Rape

False rape accusations exist, and they are a serious problem.

By Cathy Young, Slate

In the emotionally charged conversation about rape, few topics are more fraught than that of false allegations. Consider some responses to the news that singer-songwriter Conor Oberst had been falsely accused of sexual assault. Last December a woman writing in the comments section of the website xoJane, going by the name Joanie Faircloth, claimed Oberst raped her when she was a teenager. The charge spread across the Internet; Oberst denied it and brought a libel suit against Faircloth when she refused to retract the story. In July she completely recanted, admitting that she had made it all up to get attention. Yet instead of showing sympathy for the ordeal of the musician—one known for being supportive of feminist issues—some chided him for taking legal action to defend himself against a false, career-damaging charge. In the Daily Dot, pop culture critic Chris Ostendorf decried the lawsuit, arguing that it could intimidate real victims of rape and that it promoted the idea of men as victims of false accusations—even though that’s exactly what Oberst was. After Oberst dropped the suit, Bustle’s Caroline Pate praised his decision and referred to the saga as “a roller-coaster for both parties”—treating the false accuser and the wrongly accused as morally equivalent—and called the revelation of Oberst’s innocence “crushingly disappointing.”

False rape accusations are a lightning rod for a variety of reasons. Rape is a repugnant crime—and one for which the evidence often relies on one person’s word against another’s. Moreover, in the not-so-distant past, the belief that women routinely make up rape charges often led to appalling treatment of victims. However, in challenging what author and law professor Susan Estrich has called “the myth of the lying woman,” feminists have been creating their own counter-myth: that of the woman who never lies.

More than a quarter-century ago, feminist legal theorist Catharine MacKinnon wrote that “feminism is built on believing women’s accounts of sexual use and abuse by men”; today, Jessica Valenti urges us to “believe victims en masse,” because only then will we recognize the true prevalence of sexual assault. But a de facto presumption of guilt in alleged sexual offenses is as dangerous as a presumption of guilt in any crime, and for the same reasons: It upends the foundations on which our system of justice rests and creates a risk of ruining innocent lives.

How frequent are false accusations? A commonly cited estimate, which may have originated with feminist author Susan Brownmiller in the 1970s, is that they account for only about 2 percent of rape reports. After the Oberst fiasco, feminist blogger Rebecca Watson posted a video asserting that, statistically, you will be wrong two out of 100 times if you presume a rape accusation to be true and 98 out of 100 times if you presume it to be false.

In fact, as Emily Bazelon and Rachael Larimore wrote in Slate five years ago, official data on what law enforcement terms “unfounded” rape reports (that is, ones in which the police determine that no crime occurred) yield conflicting numbers, depending on local policies and procedures—averaging 8 percent to 10 percent of all reported rapes. Yet the truth is even knottier than these statistics suggest. The answer to “How common are false allegations?” depends largely on how false allegations are defined. Do we count only cases in which a police report—or a complaint to some other official authority, such as a college administrator—is shown to be deliberately false? Do we include informal, word-of-mouth charges like the one against Oberst? What of he said/she said cases in which the truth is never known?

Not all reports classified as unfounded are necessarily false. In some cases, women who were victims of rape were disbelieved, pressured into recanting, and charged with false reporting only to be vindicated later on—the kind of awful story that adds to people’s skittishness about discussing false accusations. Some police departments have been criticized for having an anomalously high percentage of supposedly unfounded rape charges: Baltimore’s “unfounded” rate used to be the highest in the nation, at about 30 percent, due partly to questionable and sometimes downright abusive police procedures, such as badgering a woman about why she waited two hours to report a street assault. By 2013, an effort to provide better training and encourage full investigation of all complaints reduced that rate to less than 2 percent.

On the other hand, “unfounded” statistics do not capture all false allegations—only cases rejected at the earliest stage (correctly or not) because of what investigators believe to be strong proof that no crime was committed. This does not include cases in which charges are filed but rejected for prosecution (between a quarter and nearly half of all cases), or the relatively small number of prosecutions that end in dismissal or acquittal. Of course not all such cases involve innocent defendants—probably not even most; but surely some do.

In challenging “the myth of the lying woman,” feminists have been creating their own counter-myth: that of the woman who never lies.

A similar pattern can be found in a recent study often cited as evidence of the rarity of false accusations: a 2010 paper by psychologist David Lisak, which examined all 136 sexual assault reports made on a northeastern university campus over a 10-year period. For 19 of these cases, the files did not contain enough information to evaluate the outcome. Of the 117 cases that could be classified, eight—or 6.8 percent—were determined to be false complaints; that conclusion was reached when there was substantial evidence refuting the complainant’s account. But does it mean that 93 percent of the reports that could be evaluated were shown to be truthful?

More than 40 percent of the reports evaluated in Lisak’s study (excluding the ones for which there was not enough information to classify them) did result in disciplinary or criminal charges. However, 52 percent were investigated and closed. Lisak told me that the vast majority of these complaints did not proceed due to insufficient evidence, often because the complainant had stopped cooperating with investigators. His paper also mentions another type of complaint that did not proceed: cases in which “the incident did not meet the legal elements of the crime of sexual assault.” Lisak was unable to provide any specifics on these incidents. But, in other known cases, such allegations stem from conflicting definitions of what constitutes rape and consent—particularly in sexual encounters that involve alcohol.

The scandal at Ohio University last fall is an example of this.* A female student who was caught on camera in a drunken public sex act—which bystanders of both sexes had perceived as consensual—then filed a rape complaint after photos and video that showed her receiving oral sex from a male student became an Internet hit. The woman, who claimed she had no memory of the event, received strong support from feminist activists on campus and was vilified as a liar on men’s rights websites. Ultimately, the grand jury cleared the man, concluding that while both parties were drunk, the woman was not incapacitated—she walked away unassisted and bought a burrito moments after the encounter—and was a willing participant. The district attorney also declined to charge either party with public indecency, commenting that the embarrassment was punishment enough.

Did the young woman lie to salvage her reputation? Of course we don’t know; it may be that she thought that any level of intoxication renders consent invalid, as many campus programs are teaching today. But, as sociologist Kathleen Bogle and law professor Anne Coughlin recently noted in Slate, this is far from the legal standard for incapacitation required in a criminal finding of sexual assault. Even assuming the female student genuinely believed that what happened was rape, it was still, as the investigation concluded, a wrongful accusation—but one that won’t be recorded as an “unfounded rape report” by the FBI.

So why is it necessary for us to have a clearer picture of the scope of false allegations, if most allegations are not intentionally false? We are not, as some anti-feminist blogs assert, in the midst of a massive “epidemic” of rape hoaxes. But wrongful accusations—either deliberately made up or based on gray-area cases that may hinge on mixed signals, alcohol-addled memories, or misunderstandings of what constitutes sexual assault—are not the almost nonexistent anomaly advocates for victims often claim. They can be cries for attention and sympathy, or attempts to cover up embarrassing sexual encounters (such as the 2009 Hofstra University case in which a female student’s claim of gang rape in a men’s room fell apart after a cellphone video taken by one of the accused men showed consensual group sex), or vendettasagainst former partners.

At whatever rate such cases occur, they should not be dismissed as statistical blips: These lies can have tragic results. Two years ago former California high school football star Brian Banks, who had spent five years in prison for raping his classmate Wanetta Gibson, was exonerated after Gibson contacted him to apologize and admitted making up the attack. In 2009, New Yorker William McCaffrey was released after serving four years of a 20-year prison sentence for a rape his friend Biurny Peguero had made up to explain her injuries from a fight with several women. In 2012 a Michigan man, James Grissom, was freed after nearly 10 years in prison when the woman who accused him, Sara Ylen, was caught making another false allegation (and faking cancer to bilk money from insurance companies and sympathetic donors). Even without a wrongful conviction, the consequences of a false accusation can be devastating—from a terrifying middle-of-the-night arrest to lengthy pretrial detention.

Cultural unease about the issue of false accusations is understandable, given how the “crying rape” trope has been historically linked with misogynist stereotypes of women as devious, crazy, or both. The old assumptions about women’s propensity to lie about rape led to sexist laws that required women to be bruised, bloodied, and chaste to prove that they were attacked. Even now, this topic attracts woman-haters, such as the “men’s rights activist” who misidentified an Ohio University student as the accuser in the caught-on-video case last fall and suggested that even if he had the wrong woman, it was appropriate payback for calumnies against innocent males.

But “believe the victim” dogma, and the resistance to seeing false accusations as a real problem, can also create a dangerous environment. It is a climate in which a law mandating an impossibly vague “affirmative consent” standard in campus sexual assault cases can be defended on the grounds that false complaints are a nonissue. It is a climate in which an exoneration is often presumed to be a miscarriage of justice, like when, earlier this year, activists at Dartmouth were dismayed at a student’s acquittal even though his story of clumsy drunken sex was backed by substantial evidence.

In this climate a man can be publicly vilified on the basis of an anonymous accusation on the Internet nearly a decade after the alleged rape. Even as the allegation against Oberst crumbled, another such charge gained traction—this one against Max Temkin, co-creator of the indie game Cards Against Humanity. Temkin’s accuser, a former fellow student at Goucher College who calls herself “Magz,” says that she spent years blaming herself for the attack (of which she has given no specifics), until she was finally emboldened to come forward by the stories shared in the #YesAllWomen hashtag. Temkin, who says that “Magz” first began to accuse him after seeing him profiled in a newspaper, maintains that the two had a brief consensual relationship that stopped short of intercourse and that he broke off in a rather insensitive way.

Most of the public responses were scathing toward Temkin. Filmmaker Kelly Kend speculated that both Temkin and “Magz” were telling the truth but he had misread her signals, making him an unwitting rapist. Comedian and culture blogger Arthur Chu called Temkin’s categorical denial of guilt “vague” and “deflecting.” In a much harsher comment, game-maker Ryan Macklin slammed Temkin’s attempt to defend himself as “vile” and called the mere mention of a libel suit “a metaphorical threat of rape.” In late August, Temkin was disinvited from the XOXO Festival, an event celebrating independently produced art and technology, after some social media complaints about “promoting a rapist.”

We don’t know whether Temkin is the victim of a false allegation; we also don’t know whether “Magz” is a victim of rape. We don’t know—and will probably never know, barring a confession from him or a recantation from her. But the rush to condemn Temkin and support “Magz” starkly illustrates both the power and the peril of unproven accusations.

Our focus on getting justice for women who are sexually assaulted is necessary and right. We are still far from the day when every woman who makes a rape accusation gets a proper police investigation and a fair hearing. But seeking justice for female victims should make us more sensitive, not less, to justice for unfairly accused men. In practical terms, that means finding ways to show support for victims of sexual violence without equating accusation and guilt, and recognizing that the wrongly accused are real victims too. It means not assuming that only a conviction is a fair outcome for an alleged sex crime. It means, finally, rejecting laws and policies rooted in the assumption that wrongful accusations are so vanishingly rare they needn’t be a cause for concern. To put it simply, we need to stop presuming guilt.

This article was originally published by Slate on September 18, 2014. Reprinted with author’s permission.