11-minute read.
This is a stripped-down version of my most comprehensive article on false allegations on this site, A Lesser Tragedy, specially tailored for those who are too busy to read the full 10,000-word original. However, I still recommend the full version, because it has more examples and further observation.
New Zealand's TV One anchor adopted his best concerned face – that blend of shock and sorrow usually reserved for terrorist attacks and earthquakes – when he introduced the channel's item late in 2019 on sexual crime. “For every one hundred cases of sexual violence reported to police, only eleven end in a conviction.” He called the figure a “stark finding” of a four-year report from the Ministry of Justice. Viewers then saw an interview with sexual abuse survivor “Hannah”. She was pleased her abuser was duly convicted, but she called the system “traumatic”. She said, “They don't really view you as a person; it's like you're just a piece of evidence.”
The report conveyed the impression of miscarriages of justice in numbers so massive that it's a national scandal. However, every word in this item – the news script, the comments by Hannah and the Ministry report itself – implied that all sexual suspects are either perpetrators who do jail time or perpetrators who walk free. In plain terms, there is a national emergency – but only if we assume all defendants are guilty and the only good sexual trial is in effect a show trial.
The giveaway word in the TV One item was reported. The numbers included all sexual accusations reported to police – the earliest stage of any investigation, when all cases are only allegations. Granted, police abandon some genuine cases because the offender can't be traced, or they just aren't convinced a jury will convict on the available evidence, and I understand the sense of injustice any real victim feels after such a decision.
Some cases go to trial and result in acquittal for the best possible reason - the defendant is innocent. Others barely get off the starting blocks. For example, the alleged offender in an historical case may have emigrated or died. In other cases the complainant may retract for any of a catalogue of reasons, either singly or in combination: she has decided the trial process will be too long and stressful; she's not confident she'll get a conviction; she no longer considers the sexual encounter a crime; the alleged offender was someone she knows and for whom she still has some affection; consent wasn't given but she now thinks it was, or at least thinks that he thought it was; a friend or family member initially assured her that the distasteful and/or drunken sexual encounter counted as a crime, but the complainant herself is no longer convinced that it did.
In countless other cases the investigation by police has revealed that she simply wasn't telling the truth, but had made it all up for any of a host of reasons, including expediency, jealousy, shame, greed, scapegoating, malice or a craving for attention, mastery, sympathy or sainthood – even for a warped kind of love. A more complete list of reasons for making wrongful allegations has been compiled by Bob Mellors, and features on this site.
Yet all these initial accusations are ostensible sexual crimes reported to the police and logged as such. Merely expressing the number convicted as a percentage of the number reported glosses over the myriad reasons for attrition, and manufacturing shock from that percentage cynically works backwards from the assumption that all accusers are telling the truth.
Wrongful sexual accusations are always serious, often devastating and sometimes life-destroying. They are also common. To justify this claim, I'll turn to the statistics – what they show, what they don't and what they can't.
Most activists admit that false sexual accusations do occur. However, this concession is a hypothetical one made only to appear open-minded, because in almost all actual cases the hashtag dogma of #believethevictim takes over. Even moderates insist that false allegations are extremely uncommon. The mantra of the moment appears to be vanishingly rare, and statistical comparisons with fatal lightning strikes are especially popular.
The myth of low rates of false allegations has become such a comforting article of faith that no column on sexual crime is complete if it fails to remind readers of their infrequency. Harriet Williamson in the Independent on June 1 2021 ridiculed people “bleating about the prevalence of false allegations”; Louise O'Neill in the Irish Examiner in January 2021 said that false allegation rates “hover at around four percent”; and Slate columnist Ruth Graham went so far as to label all those who deny that wrongful complaints are rare as “bottom feeders”.
Some have quoted Katty Kay's September 18 2018 BBC online article The Truth about False Assault Accusations by Women. It's useful to look more closely at Kay's claims, as they are typical of the genre. Kay admits that false accusations occur, but insists they're rare. She also dismisses their impact, commenting that “False rape accusations very rarely lead to convictions or wrongful jail time.” It's true that many wrongful sexual allegations are stopped in their tracks early in the investigation, but an unknown number are not.
Kay doesn't acknowledge that even a trial which produces an acquittal is a kind of tragedy, because it could cost the defendant his job, his mental health, his reputation and his savings. When the truth's elusive, as it so often is in sexual accusations, the official ruling to “let a jury decide” appears so impartial, so enlightened. However, any falsely accused suspect can be forgiven for seeing it differently.
Wrongful accusations also lead to convictions far more often than Kay suggests, because revised laws allow conviction for sexual crimes just on the testimony of the accuser. The prosecuting lawyer will urge jurors to convict if they find her convincing. They often do, assuming that what looks like smoke must mean fire. How often are they mistaken? No one can know, but sometimes they must be. If medical diagnoses based on scientific criteria can produce false positive results, it is certain that verdicts based on a single and subjective criterion – a “ring of truth” in an accuser's story – produce even more.
This especially applies to “non-recent” accusations. The result is that innocent men – many of them elderly – languish in jail. A miscarriage of justice in a “ring of truth” case is especially difficult to overturn. The mere hope that a second jury or judge may be less impressed by the complainant's court performance is no grounds for appeal. The exasperating fact is that new evidence is needed – in a case in which evidence played no role from the outset.
The justification Kay offers for low false accusation numbers is the kind activists always offer – if they bother at all. She refers to a UK Crown Prosecution Service report revealing that of 216 sexual cases classified as false allegations, only two suspects eventually had charges brought against them. On the surface, this appears to show that false sexual allegations are rare, but even passing analysis shows it does nothing of the kind; the only insight it offers is into prosecution policy. I examined this error in some detail in my article Figuring the Figures, on this site, about how statistics of false sexual accusations are misinterpreted.
In the UK, policies instigated by Keir (now Sir Keir) Starmer, former director of the Crown Prosecution Service and from April 2020 leader of the Labour Party, have produced countless miscarriages of justice. Starmer introduced an assertive new #believethevictim prosecution policy for sexual cases, based on low numbers of convictions for false accusations. The justification was that because prosecutions for false accusations were so few, the CPS could in effect assume all accusers tell the truth and therefore take more sexual suspects to trial. However, those low false allegation numbers resulted from a reluctance by the CPS itself to prosecute wrongful accusers. If any officials prominent in the CPS noticed this obvious vicious circle, they kept quiet about it.
Here are the CPS guidelines for prosecuting false sexual accusers, updated in 2019 but not in a way that is likely to give any more hope to the wrongfully accused: https://www.cps.gov.uk/legal-guidance/false-allegations-rape-andor-domestic-abuse-see-guidance-charging-perverting-course. These criteria are a set of escape clauses for false accusers, offering many pretexts for abandoning prosecution and assuring that even a liar is labelled a victim. Any potential prosecution which jumps through these evidential hoops is almost certain to stumble on the final obstacle of “public interest”. Even if her accusation is provably untrue, she is so emotionally damaged that any prosecution could destroy her, and the most enlightened action for the state to take is no action at all.
False accusers also escape justice here in New Zealand. Retired Christchurch detective Al Lester wrote in his work memoir Straight from the Pig's Mouth about the case of a young woman who claimed she had been raped. Some hard questions early in the investigation (and fortunately before any victim was identified) had her tearfully reveal that she invented the story because she was a student and hadn't studied for exams. This was her way of being granted a pass based on her semester grades. She wasn't prosecuted. Add this case to the global catalogue of public interest triumphs for false accusers.
Haydon Dewes in the Dominion Post (Wellington) on January 13 2004 claimed that false sexual complaints “cost millions”, and that police logged an average of 444 false complaints per year. No records were kept about the nature of these false complaints, but officers who spoke to the newspaper said most related to sex offences. Just a day later (January 14) the Manawatu Evening Standard quoted detective sergeant Dave Clifford as saying that false sexual assault claims had become so frequent that “police will start prosecuting people who try to use a fictitious assault as a reason for coming home late.” However, I found no evidence they did so.
It's my own experience that has helped confirm that false accusers almost never face consequences and that available data on false accusations is therefore too muddy to offer any clue about their frequency. In February 2013 “Verity”, a woman approaching forty, accused her father of raping her when she was young and recruiting his friends, including me, to do the same. I had never met her, though I knew who she was. I was interviewed as a suspect in 2015. She made twenty-eight separate accusations (most against her father), each referring to a different incident. My book, Dry Ice: The True Story of a False Rape Complaint, tells the whole story. Eventually we weren't charged, because our accuser was such an inept liar that even the police finally saw that the allegations were preposterous. Yet when I asked if Verity would be prosecuted, my detective just told me to shut up and mind my own business – in very much the tone the words suggest.
Even now, our cases have been “filed”. What this means has never been explained – which is intolerable enough in itself given the high stakes – so I had to find out for myself. It means, far from even considering the possibility that Verity should be considered a false accuser, the police remain officially in thrall to the #believethevictim narrative even in the face of contrary facts. They treat her accusation as live but dormant, ready to be re-activated if she comes up with a twenty-ninth debauched incident that jurors just may consider more plausible than the twenty-eight that the police knew they would reject.
The leniency skews the data. If any researcher were to prod the police in my city for information about false allegations, they would honestly respond that they have no such cases at all, only sexual assault cases that are open but as yet inconclusive. For example, in regard to our case police would say that the men remain suspects. Our file remains in the local police station, labelled as yet another sexual crime reported but not prosecuted and contributing to the topsy-turvy “data” in the TV One news report with which I opened this article. Activists can use cases like ours as evidence that not enough sexual victims achieve justice.
The legal landscape of sexual crime has shifted seismically. In 1960, just 515 rapes were reported in all of England and Wales. According to statista.com, by 2012/13 that had burgeoned to 16,000 and by 2017/18 to over 54,000. Even allowing for population growth, that's close to a hundred-fold increase in sixty years. Figures for New Zealand are similar, relative to population. Sexual complaints have increased dramatically in most developed countries in the past couple of generations, and positively rocketed in the last decade or so. Much has been written about the reasons for the new, higher numbers, but I would rather focus not on why numbers are so high now but on why they were so low sixty years ago. Examining the historical low numbers helps us to understand the limitations of data on false allegations today.
Looking back, we know of course that rape was much more common than the numbers showed. We now see that the low figure came from prosecution policy: the conviction rate was low because the prosecution rate was low, and the prosecution rate was in turn low because of a combination of prevailing social conditions: limited awareness, the unwarranted shame or guilt felt by real victims, flawed public perception and patriarchal bias (“She clearly was asking for it”).
Here's a thought experiment. Imagine an early activist back in 1960 – a pioneering feminist journalist, perhaps – who insisted that rape was more common than most people realised, and more than official figures suggested. Imagine her hair-tearing exasperation when she couldn't get into print because she was repeatedly told by those who controlled the public narrative at the time (senior police, politicians and editors) that rape was obviously rare because the statistics told us so. When asked for hard data that proved otherwise she was stymied because there was no other data.
Imagine she protested that she personally knew four women who had definitely been raped, so national numbers must have been higher than the figures told us, but received a condescending smile and the glib response, “Sorry, but anecdote can't count as data. Look at the low conviction rate. Where's your evidence?” Perhaps even the infuriatingly patriarchal, “You're being emotional.” All available data supported an opinion that was mistaken but widely accepted. Evidence was there to be unearthed, but only by someone who found the right rock and knew how to lift it.
This is exactly the way it is now with wrongful sexual allegations. We have every reason to believe they are more common than statistics can tell us, even though advocates on neither side can ever know the numbers. Statistics are important, but what I have written questions the balance and the usefulness of information we have on wrongful allegations. Sometimes what can be counted isn't what counts; sometimes the way the available data is officially pigeonholed skews our perception, and then the truth must be coaxed out of observation, reflection and mere anecdote. Afterwards, the data can be examined through a more truthful lens.
All doors are locked to anyone denying that false allegations are rare. Several times I have written brief articles about the issue, but New Zealand mainstream editors have vetoed every one, sometimes after initial interest by a reporter. On the three occasions when a reason was given for rejection, it was because my claims were not backed up with “hard data”. The maddening problem is that the official leniency towards false accusers repackages the data in a way that gifts it to my adversaries, so it is worse than useless. As I wrote above, almost all wrongful allegations – including the one against us – are filed as genuine sexual accusation cases which as yet have insufficient evidence to proceed.
In one piece, an editor objected to the word many in my phrase “one of the many falsely accused”. What justification did I have for such a bold claim? Where was the hard data? By contrast, all statements from activists are printed as unfiltered and unquestionable gospel. Stuff columnist Emily Brookes got away with quoting Kathryn McPhillips of HELP Auckland as saying false sexual allegations are around one percent – a figure McPhillips attributed to an "informal survey" by an unnamed crime manager. No editor blocked a New Zealand columnist's claim that a woman is forty-five times more likely not to report a rape than to make a false rape accusation – a risibly precise comparison between two unobtainable numbers.
For activists, the only problem is that too many sexual perpetrators are roaming free. Most are furious that some juries have the audacity to acquit in the face of #believethevictim. They attribute these acquittals to “rape myths” and are reluctant to concede that juries sometimes just don't accept the complainant's version of the story. I had much more to say about the damage caused by this inflexible thinking in my article Rape Myth Myths, on this site.
Since we don't know the reasons for verdicts, why limit the range of our assumptions? If an activist is entitled simply to trust her gut on what juries discuss before they acquit, the rules of fair play should permit me my own conjecture about what they discuss before they convict. The most pervasive and dangerous rape myths may in fact be the ones that produce false positives, rather than the false negatives activists claim. What follows are rape myths that may cause jurors to convict an innocent man.
One myth is founded on a naive faith in the justice system, encouraging jurors to begin deliberations with an unstated assumption: even without corroboration, surely the case wouldn't have come to court unless there was good cause to pursue it. When even the prosecution admits there's no independent evidence and encourages jurors to find the suspect guilty on “a ring of truth”, they may also overestimate their own ability to appraise a witness's honesty. The rhetorical question “Why would she be lying?” is naive and dangerous, because it implies that the questioner rejects any reason to assume the accusation may be false. Lie is a negatively loaded word, but the accuser may have any of a long list of reasons not to be telling the truth – or no discernible reason at all.
I once discussed an almost certainly false historical case with a friend. She insisted the accuser, who was the defendant's daughter, must have been a genuine incest victim because telling such despicable lies about her own father would violate the natural parent-child bond. I countered that all we know for certain is that something disturbingly unnatural did occur: either the daughter told these lies or his father raped her. How does a juror decide which of these mutually exclusive unnatural acts is true? Just by appraising the complainant's apparent sincerity?
Many activists campaign to have bench trials replace jury trials in sexual cases. To qualify, judges will need to have a special designation – in other words, any tainted by acceptance of “rape myths” will be filtered out. One alleged myth is that the trauma of sexual crime can prevent a victim from reporting it for a long time. I concede this is true in some cases, and such a shift of perspective can be seen as an understandable reaction to historically short reporting times.
However, it must not be allowed to become the default assumption, enshrined in law, that delayed complaints are necessarily true. Reasons for making false allegations can also persist for many years, such as spite, mental illness, shame and the effects of quack counselling. “Trauma-informed” policies will mean that any woman will be legally entitled to interpret any sexual liaison in any way she chooses at any time – not just immediately afterwards or the next morning, but even years after the event.
Convictions aren't commodities that society needs to acquire more of, like vaccines or roadside safety barriers. Yet many powerful people are convinced they are, and not only here in New Zealand. English criminal barrister Matthew Scott reported in an article in the Spectator on February 13 2021 that the Chief Constable of Norfolk Police, Simon Bailey, offered recent high conviction rates for historical charges as evidence that the current #believethevictim policies are successful. I suspect that innocent men, convicted solely on the testimony of their accusers, would disagree, but they have no voice.
Any nation is its laws. A government has a responsibility to reform them as values evolve, but that must not allow it to tamper with the independent running of the courts in order to bring changes demanded by a partisan narrative. I despair that in ten years' time a buoyant news reader will inform viewers that huge progress has been made because convictions have increased.
How many would be enough? I'm not sure what Stalin achieved, but Communist China boasts 99.9%. Now there's a useful benchmark.