A Lie Told Often Enough…

Returning to the topic of the Enliven Project rape infographic:

Two Percent?

Sarah Beaulieu, trying to justify the infographic, assumes that only 2% of rape reports are false. This is, as it turns out, not only her assertion; it is also a meme.

Edward Greer of Brookline Massachusetts did some detective work to try to track down the meme's Patient Zero. In an article (PDF, via dinky_hawker on reddit) published at 33 Loyola of Los Angeles Law Review 947 (2000) Greer tracks the percentage (which is by "overwhelming consensus" recognized to be "empirical fact") back to "an illusion that sprang from a mimeoed handout in Susan Brownmiller’s file." Brownmiller's assertion that no more than 2% of reported rapes are false is based entirely on the remarks of a judge, New York Appellate Division Justice Lawrence H. Cooke, "Before the Association of the Bar of the City of New York, Jan. 16, 1974."

Every "scholar" for the last thirty-eight years who has asserted that only 2% of rape reports are false bases this assertion on comment a judge made in a speech to some lawyers. These scholars cite to each other, but in the end nobody has any other basis for the assertion than Judge Cooke's comment.

Twenty-Five Percent?

(This is for that guy at reddit who thinks that saying, "I've got a bias, so consider your own experience"  is less awesome than trying to prove it to him.)

In my original post I mentioned the number "close to 25%"—the exclusion rate in cases submitted to DNA laboratories. Max Kennerly took me to task in comments for not providing a better citation for what I describe as "a credible reason to assume" that the fraction of rape allegations that are false is greater than two percent.

Max, "A credible reason to assume" is auxetic. But, just for you, here's a source: Convicted by Juries, Exonerated by Science, US Department of Justice Office of Justice Programs 1996 (at page 20):

In about 23 percent of the 21,621 cases, DNA test results excluded suspects, according to respondents.

Twenty-three percent of DNA tests excluding suspects does not mean that 23% of rape allegations are false. Many rape allegations don't involve testable DNA; in those that do, suspects may be developed by other means than the complainants' accusation. If a woman is raped and says "I don't know who did it" and the police develop a suspect and that suspect is excluded by DNA testing, that's not a false allegation.

So I'm not sure that the 23% exclusion rate really says anything about how many rape allegations are false. But you can certainly use it as a credible basis to assume. Auxesis.

Forty-One Percent?

There have in fact been studies done of the percentage of rape allegations that are false.

Here are the parameters of one US study, published in the peer-reviewed Archives of Sexual Behavior:

  • 109 forcible rape allegations.
  • Over 9 years (1978-1987).
  • In a midwestern town of 70,000.
  • Investigation of all rape complaints involved a serious offer to polygraph the complainants and the suspects.
  • "False allegation" means that the complainant recanted.
  • The police agency charged recanting complainants with filing a false complaint.

Here are some of the findings:

  • Forty-five of the 109 complainants (41%) recanted, and did not then try to retract their recantations when they were told they would be prosecuted for filing a false complaint.
  • Twenty-seven of the forty-five had made false allegations "to provide a plausible explanation for some suddenly foreseen, unfortunate consequence of a consensual encounter, usually sexual, with a male acquaintance." (I referred to this most common motivation in my first post on the topic; 
  • Twelve of the forty-five had made false allegations to retaliate against a rejecting male.
  • Eight of the forty-five had made false allegations to get attention or sympathy.
  • (Motives were determined based on the complainants' own words; bviously, there is some overlap among motives.)
(Kanin, False Rape Allegations, 23 Archives of Sexual Behavior 81 (1994) (PDF)).

Kanin's data are poo-pooed in an article (PDF) from a magazine published by the American Prosecutors Research Institute’s National Center for the Prosecution of Violence Against Women (bias alert!)—the article on which Beaulieu bases her 2% assumption:

In other words, there is no way to explore whether the classification of these cases as false was simply made as a result of the detectives’ own perceptions and biases, without any real investigation being conducted.This concern is compounded by the fact that the practice of this particular police department was to make a “serious offer to polygraph” all rape complainants and sus- pects (Kanin, 1994, p. 82). In fact, this practice “has been rejected and, in many cases, outlawed because of its intimidating impact on victims” (Lisak, 2007, p. 6).The reason is because many victims will recant when faced with apparent skepticism on the part of the investigator and the intimidating prospect of having to take a polygraph examination.Yet such a recantation does not necessarily mean that the original report was false.

In reality, there is no way that an investiga- tor can make an appropriate determination about the legitimacy of a sexual assault report when no real investigation has been conducted—and the victim is intimidated by the department’s policy of making a “serious offer to polygraph” all rape complainants. As we will discuss at length below, the determination that a report is false can only be made on the basis of findings from a thorough, evidence-based investigation.

The prosecutors' article then goes on to talk about "the MAD study," which classified seven percent of rape reports as false (two of the three authors of the study are directors of EVAW international, which conducted the study; there seems to be no reference to published, much less peer-reviewed results of the MAD study.

People with an agenda can not only pick and choose the statistics they use to make their arguments and info graphics, but also design their studies to get results closer to their ideology. That is one reason that (peer-reviewed and published) > not (peer-reviewed and published).

Ideology

I'll lay my ideology on the table. I am a criminal-defense lawyer with a mother, a father, a brother, a wife, a daughter, and a son.

I believe that rapists should be reported and prosecuted (I benefit from it not only as a member of society, but also as a professional in the business of defending against rape allegations).

I also believe that false rape allegations should never be made (I benefit from false rape allegations, because they need to be defended against as well, but this (like the War on Drugs) is one of those instances in which I will work against my own self-interest).

"One" would be an unacceptably high number either of false rape allegations or of victims not reporting their rapes. I would no more want one of the men in my family to be falsely accused of rape than I would want one of the women in my family to be raped. I don't know how we can, as a society, reduce the number of unreported rapes without increasing the number of false reports.

I try not to let my ideology affect my presentation of facts here. (That's what the courtroom is for.) "Two percent" is a number based entirely in ideology. Greer, in his article, discusses the ideology behind "two percent":

LDF literature advances the proposition that “women don’t lie about rape” as an axiomatic substrate to their proposed policy changes fueled by the purported two percent false claim figure. As further justification, LDF proclaims that women are deterred from making false rape charges because, inter alia, rape complainants are subjected to a harrowing “second rape.” Simultaneously, LDF wants alterations in the processing of rape charges by reducing the sanctions, costs and trauma—i.e., the “second rape”—that face women who come forward and press rape charges.

Making it easier to press rape charges, Greer points out, makes it easier to press false rape charges. Can we solve one problem without exacerbating the other? I don't know the answer, but I know it won't be found in lies.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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12 Responses to A Lie Told Often Enough…

  1. Max Kennerly says:

    Thanks for addressing my comment. I wouldn’t say I “took you to task” (I usually consider that an allegation of bad faith), I was just pointing out it was merely the commentary of a DA somewhere, and wasn’t backed up by anything else.

    The cite you have now is commentary by Barry Scheck asserting, also without citation, “FBI officials report” those numbers. Like with the DA, maybe he’s right — I respect Barry Scheck’s work immensely — but maybe this is some silly myth that’s being passed around on one ideological side, like how you describe the 2% number. He doesn’t claim he actually saw and reviewed the data, he just drops the figure in there and expects no one to ask questions. It wouldn’t be surprising if each side has their own “facts” nobody can source.

    It really shouldn’t be that hard for someone to track down the source of these supposed FBI numbers. I don’t mean that person should be you, but, well, if we’re having this big debate on the internet about empirical data, we should have the actual empirical data at hand or admit that we don’t have it.

    • Max Kennerly says:

      You know what, scratch that — I see where Barry Scheck got that number, from lower in the report. Shows me for searching for the phrase only once. (Why his commentary precedes the data beats me.)

      Mea culpa. Lemme read that report.

    • Max Kennerly says:

      One more then I’m done: later in the study, it references a telephone survey of DNA labs about DNA evidence in general, and that’s what you quote. That survey does not seem to be limited to sexual assault cases, so I still have no idea where Scheck got that number from. Either he made an assumption or the survey wasn’t described correctly in the DOJ report.

      Then there’s the problem of what it means to “exclude a suspect,” as you discuss.

      Anyway, my point in general remains that this issue is rarely discussed with much reference to empirical data. Usually, if someone cites something at all, it’s just one cite and then we’re off to the races to the conclusion. The Kanin study is interesting, but it’s also a narrow study; I don’t see why that can’t be repeated many times, to create a much larger dataset. Maybe it has been.

      At the end of all of this is the question you raise of: what policy should we change? I frankly can’t think of much to change other than to encourage prosecutors to do a thorough and fair review of every case. But we all know that.

      • Mark Bennett says:

        Hmm. Interesting. It looks like Scheck is referring to other data than the NIJ’s informal survey, which carries this caveat:

        Unfortunately, the laboratories were unable to provide more details. They did not maintain data bases that would permit categorization of DNA test results by type of offense and other criteria. What happened to the suspects who were excluded through DNA testing also cannot be determined. Were they released, or were they charged on the basis of other evidence, for example?

        Do you have time for a homework assignment?

      • Max Kennerly says:

        Oof. I wish. I did find this:

        http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2092195

        Note this conclusion:

        “The causes of false convictions vary greatly by crime. For homicides, which account for nearly half of all exonerations in the study, the leading cause of error was perjury and other false accusations – usually deliberate false identification of the defendant as the criminal. Homicide exonerations also include a high rate of official misconduct and three-quarters of all false confessions in the study. For adult sexual assault cases, and for the much smaller number of robbery exonerations, the leading cause of error was mistaken witness identifications. Sexual assault exonerations also include a large number of cases with false or misleading forensic evidence.”

  2. This was one of the best criminal defense posts I have read in a long time. I have a rape case coming up where the defense is false accusation to cover up a consensual encounter where they were caught in the act. The post gave me a lot of ideas to discuss during jury selection, thanks.

  3. Sylvia Russell says:

    This is interesting, but I think that the amount of false allegations probably has changed over the past 20 years. And, more specifically, I’m going to guess that it’s been significantly reduced. There’s been a lot of change regarding acceptance of female sexuality, so while women may regret sleeping with a man, there isn’t as much societal pressure(though it still exists) that women should be ashamed of it, and thus less pressure to renounce a consensual sexual act.

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