Sunday, November 4, 2012

The '50 Actual Facts About Rape' Not Entirely 'Actual'

Soraya Chemaly has a piece in Huffington Post called "50 Actual Facts About Rape."  Number 24 is dishonest because it doesn't tell the whole story about the prevalence of false rape claims. Look at numbers 23 and 24:

23. Percentage of rapes that college students think are false claims: 50 percent

24. Percentage of rapes that studies find are false claims: 2-8 percent

We are loathe to dwell on numbers lest our words devolve into an unfortunate and divisive Oppression Olympics or be construed as trivializing the seriousness of the rape problem, something we will not do. But we do need to address a nasty, and dishonest, trope that insists essentially every rape claim is, in fact, a bona fide rape that warrants punishment for the accused, and that the wrongly accused are too insignificant to worry about.

A leading feminist legal scholar has acknowledged this fact: ". . . the statistics on false rape accusation widely vary and 'as a scientific matter, the frequency of false rape complaints to police or other legal authorities remains unknown.'" A. Gruber, Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581, 595-600 (November 2009) (citation omitted).

Studies can look at a population of rape claims and discern that a certain percentage are reasonably certain to be false. What no study can do, and no serious study has ever done, is to say that aside from the claims we are reasonably certain were false claims, all of the rest were actual rapes.

In between the claims we are reasonably certain are actual rapes and the ones we are reasonably certain were false claims is a vast gray area consisting of the majority of the claims that can neither be classified as "rapes" or as non-rapes -- because we just don't know. Of all the claims we are reasonably certain were either actual rape or false rape claims, false rape claims make up far more than 8 percent.

Forget about "false" claims, let's talk about claims that were actual rapes and claims that weren't (that latter includes false claims, but it also includes claims that were mischaracterized as rape).  It makes little difference to the wrongly accused if the claim was a lie or simply a claim that doesn't amount to rape. 

Why so many gray claims?  Because that's the nature of a rape claim, of course, where the act that gives rise to the claim is almost always committed in private. The claims in this vast gray middle area often suffer from evidentiary infirmities. Sometimes, the claimant herself might think a rape occurred, but her outward manifestations of assent did not match her subjective disinclination to engage in sex, so it wasn't rape. And that's just one of a countless number of examples.

Dr. David Lisak published a study on the subject in 2010 in Violence Against Women where he classified 8 out of the 136 (5.9%) reported rapes at a major northeastern university over a ten year period as false. This figure has been cited by some prominent feminist blogs. Dr. Lisak used an exacting definition of false claims:
. . . a case was classified as a false report if there was evidence that a thorough investigation was pursued and that the investigation had yielded evidence that the reported sexual assault had in fact not occurred. A thorough investigation would involve, potentially, multiple interviews of the alleged perpetrator, the victim, and other witnesses, and where applicable, the collection of other forensic evidence (e.g., medical records, security camera records). For example, if key elements of a victim’s account of an assault were internally inconsistent and directly contradicted by multiple witnesses and if the victim then altered those key elements of his or her account, investigators might conclude that the report was false. That conclusion would have been based not on a single interview, or on intuitions about the credibility of the victim, but on a “preponderance” of evidence gathered over the course of a thorough investigation."
While Dr. Lisak's study found that 5.9% of the claims were coded as false reports, this does not mean that 94.1% can, or should, be regarded as actual sexual assaults.  Some feminist bloggers, however, are happy to spread misinformation by failing to explain that simple fact.  See, for example, http://manboobz.com/2010/11/11/mens-rights-myth-false-rape-accusations/

Read that again, and again. Dr. Lisak's report shows that 58.8% fall into the vast gray area referenced above where we simply don't know whether it was a rape, a non-rape, or a false claim (and, again, from the innocent male's perspective, it makes little difference whether a wrongful claim was also a false claim). Specifically, Dr. Lisak explains that 44.9% of the claims did not proceed to any prosecution or disciplinary action, did not result in a referral for prosecution or disciplinary action because of insufficient evidence or because the victim withdrew from the process or was unable to identify the perpetrator or because the victim mislabeled the incident (e.g., gave a truthful account of the incident, but the incident did not meet the legal elements of the crime of sexual assault). Moreover, another 13.9% contained insufficient information to be coded.

So that leaves 35.3% of the claims that were referred for prosecution or disciplinary action. For those claims, Dr. Lisak offers no opinion as to the propriety of the referral and does not reveal the outcome of the prosecution or disciplinary action.  It is interesting that Dr. Lisak did not use an exacting standard similar to the one he used to determine if a claim was "false" to determine whether an actual rape occurred. 

We have provided ample evidence on our blogs of wrongful claims that had been improperly or incorrectly referred for prosecution or disciplinary action. In short, of the claims comprising the 35.3%, we have no idea how many were actual rapes.  Thus, it is disingenuous to assert that "only" 5.9% -- or "only" 2 to 8 percent -- were false claims and to leave it at that without an explanation. It is reasonable to assert that while the number of false and wrongful claims is unknowable, the percentage is considerably higher than 2 or 5.9 or 8 percent.

Again, that is not to detract from the seriousness of the rape problem because we have not even discussed the problem of unreported rapes. It is merely to counsel against trivializing the problem of false and wrongful accusations.

Chemaly's is just the latest in a never-ending cavalcade of writings that trivialize the wrongly accused.  The wrongly accused have few resources available to them. The Innocence Project does monumentally important work in focusing attention on systemic defects that allow the innocent to be punished along with the guilty. But the Innocence Project was founded "to assist prisoners who could be proven innocent through DNA testing." Its work is largely confined to DNA exonerations and generally does not assist men and boys who admit to having sexual contact with the accuser, which is the vast majority of rape claims.

For many men and boys, our site is among the few outlets to let them know they are not alone. We have received notes from young men who tell us that our blog was instrumental in their decision not to take their own lives. This is a tremendous burden to place upon one unfunded, overworked blog. For some, one blog is one blog too many.

We share the concerns of victims' advocates about claims by some so-called men's rights advocates that women routinely lie about rape. We believe just the opposite: given the relative ease with which a false rape claim can be lodged, the fact that there are not many more is a testament to the good will of the vast majority of women.

Just as we do not tolerate the trivialization of rape, nor do we tolerate those who trivialize the victimhood of the community of the wrongly accused.