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Prosecuting false accusers will only make things worse

The Senate voted 50-48 last Saturday to confirm Brett Kavanaugh to the Supreme Court. This followed a contentious political fight over allegations by three women that Kavanaugh had committed acts of sexual assault in high school and college.

Two days later at Kavanaugh’s swearing-in, President Donald Trump proclaimed him “proven innocent” of sexual assault. In the vote’s aftermath, conservative commentators have called for criminal investigation and prosecution of Kavanaugh’s accusers for allegedly lying under oath. They’ve also called for more aggressive prosecution of false accusers in general, who sometimes face no consequences for making false reports.

This raises several important questions:

How common are false reports of rape and sexual assault?
Should false accusers be prosecuted?
How often do false accusers get prosecuted?
And finally, could Kavanaugh’s accusers be successfully prosecuted?

Careful examination of these issues strongly suggests that while false allegations are a real problem, prosecuting false accusers isn’t the answer—at least not without overhauling the criminal justice system (and perhaps also human nature) first.

How common are false reports of rape and sexual assault?

According to the most credible studies, between 2 and 10 percent of rape reports are provably or probably false. Since these studies counted only reports in which there is evidence of falsity, and inevitably some false accusers will leave no evidence, the actual rate of false reporting may be on the high end of that range. However, as one review of the literature concluded, “there is no robust evidence pointing beyond the high-end estimates of 8-10%.”

False allegations of domestic violence, sexual assault, and sexual harassment have been the subject of fewer studies than false allegations of rape. False reporting may be somewhat more common in those categories due to the complex politics of marriage and of shared living and work spaces. (The gentlest, most non-violent, most compliant man I know was falsely accused of domestic violence during a custody battle. When he asked his ex-wife why she had made the allegations, she admitted she had been advised by her lawyer that this was a winning strategy, and that my friend would never see the affidavit and would never know what she had said.)

Should false accusers be prosecuted?

False allegations are far from victimless crimes. With a few high-profile exceptions, false allegations usually do not lead to wrongful conviction of the accused. However, they may lead to other serious consequences, such as pre-trial detention, loss of employment, intervention by social services, or death threats and other social stigma. False allegations often have a racial dimension and may disproportionately target black people. Worse still, false accusers collectively victimize all genuine victims of sexual assault by eroding their credibility.

False allegations are a version of the free-rider problem. “Free riders” are people who take advantage of a benefit they aren’t entitled to. An able person who parks in handicap spaces or collects disability is a free rider. So is an emotionally well person who gets a marijuana prescription, registers a pet as an emotional support animal, or claims to “triggered” by college lectures. In doing so, free riders drain public trust and resources away from people who really need them, and they undermine the credibility of the benefit and of the institutions that provide it. In effect, they steal from the vulnerable people these benefits are intended for.

In theory, prosecution of false accusers should be good for women as well as men, because it should reduce the number of free riders and correspondingly increase the credibility of genuine victims of assault. If accusers have real skin in the game and can face real consequences for lying, the public should be able to trust accusers more implicitly and with less fear that they are taking advantage of that trust.

In practice, however, the systematic prosecution of false accusers could have a chilling effect on reporting of an already under-reported category of crime. Threats of prosecution could easily be abused to silence real victims or to intimidate accusers into retracting their claims.

The brokenness of the system is the fundamental barrier to making effective use of prosecution in these cases. Money, power, and influence dramatically affect legal outcomes, making it difficult for victims to trust that they will be treated fairly. Furthermore, the authorities responsible for prosecuting perjury appear all too willing to commit the crime themselves. Police perjury, or “testilying,” is so routine that one former police chief estimated that “hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests” alone.

In recent years perjury has become, if anything, more acceptable for powerful men than ever before. Judge Kavanaugh himself appears to have rather baldly lied under oath about aspects of his personal history, including how much he drank in college and the meaning of sexual euphemisms that appear in his yearbooks. Congress condoned this behavior by appointing him to the nation’s highest court.

Like false accusers, police and judges who lie under oath are free riders. In the same way that false accusers victimize genuine rape victims, dishonest officials victimize honest officials by undermining public trust in police and judicial institutions. The same logic that supports prosecution of false rape accusers also supports aggressive prosecution of police officers and judges who commit perjury. In fact, to prosecute false accusers without first cleaning house in the criminal justice system would be to put the cart before the horse.

Two other considerations also militate against prosecuting false accusers.

First, police lack resources to investigate misdemeanor crimes. When police can rarely be bothered to solve cases of everyday burglary or fraud, it’s hard to argue that they should spend their investigative hours trying to prove that women have made false claims of sexual assault.

Second, one factor to consider in prosecuting false accusers is how it may impact the accuser him- or herself. False accusers are often particularly vulnerable people, and they may not intend to cause harm. They tend to be young, financially unstable, suffering from addiction or mental illness, and under pressure from third parties. In nearly half of all false rape complaints, a young woman lies to her parents to explain a missed curfew or unwanted pregnancy, and it is the parents who file a criminal complaint. In other cases, the accuser sincerely believes his or her own allegations due to delusion, intoxication, or memory error. In such cases, prosecution may aggravate existing mental health problems or lead to self-harm.

How often do false accusers get prosecuted?

I am not aware of any available statistics on prosecution of false accusers in the United States. Anecdotally it seems to be rare, but it may be growing more common over time.

Lawyers Susan Stone and Kristina Supler, who deal with Title IX complaints on college campuses, recently opined that in 2018 they have observed a “tipping point” toward prosecuting false accusers in the United States. Stone and Supler cite the example of a Connecticut woman who falsely accused two football players of raping her at an off-campus party. In August she received a one-year prison sentence after pleading guilty to making a false report and interfering with police. She now admits the encounter was consensual and that she accused the players in order to save face.

Another woman who falsely accused a Texas DPS officer of rape escaped without charges earlier this year only because she made her complaint to her jailers rather than to sworn peace officers. Only sworn peace officers can take a complaint, so she cannot be charged with filing a false report.

Even when prosecutors decline to press charges, false accusers don’t necessarily escape without consequences. Instead they may face civil suits and have to pay damages. In one of the more famous false allegation cases, 15-year-old Wanetta Gibson falsely accused USC football player Brian Banks of kidnap and rape in 2002. He served five years in prison and had to register as a sex offender, and the Long Beach Unified School District paid a $750,000 settlement to Gibson’s family. In 2011 Gibson admitted she had lied. Banks’s conviction was overturned, and Gibson was ordered to pay the school district $2.6 million in damages. Banks went on to play in the NFL.

In contrast to the United States, government policy in the United Kingdom encourages authorities to prosecute at least some false accusers. The Crown Prosecution Service (CPS) publishes specific guidelines on who and when to prosecute. A 2014 investigation found that 109 women had been prosecuted in the last five years for making false rape reports. A 2018 study found 200 such women in the last decade. This of course represents only a tiny fraction of all rape accusers who came forward during that period, but it shows a significant symbolic effort and a substantial investment of public resources on the part of the UK government.

The UK example should serve as an important cautionary tale. Most of the women prosecuted are charged with “perverting the course of justice,” which carries a seemingly excessive maximum sentence of life in prison. Moreover, a recent investigation by BuzzFeed News revealed that UK prosecutors have failed to follow CPS guidelines intended to prevent prosecution of vulnerable women and of those without malicious motives. According to the BuzzFeed report,

  • “Prosecutors went after teenagers, and women who reportedly had mental health issues, had experienced past physical and sexual assault, or were grappling with drug and alcohol addiction.
  • “Women were prosecuted even when they reportedly went to police only under pressure, quickly recanted, or never named their attacker at all.
  • “The CPS has prosecuted women who police were not sure had lied. In one instance detectives declined to charge the woman for making a false complaint. Prosecutors went ahead anyway.”

In one egregious case, prosecutors charged Eleanor de Freitas, a 23-year-old girl with bipolar disorder and a known risk of self-harm, even though “Her own report to the police acknowledged she was unsure whether she consented to sex.” Eleanor hanged herself three days before her trial.

It’s also possible that prosecution of false accusers has had a chilling effect on truthful reports of rape. Survey data suggest that victims of sexual assault in the UK may be only half as likely to make a police report as victims in the United States. A 2013 study by the UK’s Ministry of Justice found an astonishingly low 15% reporting rate for rape and sexual assault. A 2017 report by the London Office for Policing and Crime estimated the reporting rate at between 5 and 25%. By contrast, US reporting rates are typically judged to be about one in three, or 33%. Of course, these numbers must be interpreted with caution, because definitions and methodologies may differ between studies.

If the United States is indeed tilting toward the UK model, voters should be leery of this development. If prosecuting false accusers is to be the new norm, it must be matched by systemic reforms to ensure that men, especially police and judges, are held to an equally rigorous standard. If the new rigor is selectively applied just to women or just to claimed victims of sexual assault, then it’s just another form of victimization.

Could Kavanaugh’s accusers be successfully prosecuted?

With regard to the specific women who accused Brett Kavanaugh, prosecutors are unlikely to be able to make any charges stick. Investigations by the FBI and media turned up a very mixed bag of evidence regarding the accusers’ credibility.

Christine Blasey Ford, who says that in high school Kavanaugh pinned her down and began to forcibly take her clothes off, boasts impressive credentials as a psychology professor and Stanford University researcher. A therapist’s notes confirm that she discussed the alleged assault as early as 2012, and is not merely fabricating it now for political purposes.

Conservatives tout small inconsistencies in Ford’s testimony as evidence that her memory is unreliable, though it’s hardly reasonable to expect perfect recall of details from a 30-year-old incident. More troubling is her alleged relationship to the polygraph test. Ford passed a polygraph to prove her bona fides, and under oath she denied ever having coached anyone how to pass the test. Following her testimony, an anonymous ex-boyfriend came forward to claim that she had lied about that, and that he had watched Ford coach her friend Monica McLean for a polygraph test required to join the FBI. McLean denies the ex-boyfriend’s claim.

By far the most credible of the three accusers is Debbie Ramirez, a quiet woman who shuns attention and communicates through her lawyers. Ramirez hesitated to speak out, because she didn’t entirely trust her memory that Kavanaugh had exposed himself to her at a college party. However, her memory is corroborated by two former classmates, Kenneth Appold and Michael Wetstone, who heard about the incident from an eyewitness the day after the party. So Ramirez’s allegation is likely true, though somewhat tamer than the stories told by the other two women.

Far less credible is the testimony of Julie Swetnick, who says that in college Kavanaugh was an “aggressive” drunk, and that he and his friend Mark Judge used to spike the punch at parties to make girls more pliable. According to Swetnick, she witnessed “trains” of frat brothers lined up to have sex with drunk girls.

Like Ford, Swetnick boasts impressive credentials, including security clearance from multiple government agencies. Swetnick’s assessment of Kavanaugh as an “aggressive” drunk is corroborated by Kavanaugh’s former suite mate Kenneth Appold, a professor of religious history at Princeton Seminary.

However, Swetnick herself admits that she doesn’t remember actually seeing Kavanaugh or Judge spike the punch. Worse, two of Swetnick’s ex-boyfriends portray her as disturbed and prone to exaggeration, and her sordid legal history casts serious doubt on her credibility. One employer sued her for allegedly falsifying her work history, and another sued her for allegedly sexually harassing colleagues and filing false sexual harassment claims.

According to a useful article in Quartz by Sarah Newman,

When one looks at a series of fabricated sexual assaults, . . . patterns immediately begin to emerge. The most striking of these is that, almost invariably, adult false accusers who persist in pursuing charges have a previous history of bizarre fabrications or criminal fraud.

By this standard, Ford and Ramirez don’t appear to fit the pattern of adult false accusers, but Julie Swetnick does. If any of the three accusers could be successfully prosecuted, it’s her. However, even in Swentick’s case, prosecutors might find it difficult to make any charges stick. Some of what she claimed has been corroborated, and the rest is sufficiently vague that it would be difficult to disprove.

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