33 minute read
The Untold Story of False Sexual Allegations
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.” Just in case demeanour alone wasn't enough, he called the figure a “stark finding” of a four-year report from the Ministry of Justice.
His co-presenter added that the government “admits the result isn't good enough, and is working to make it better.” She then crossed to the channel's field reporter, who fleshed out the stats: for every hundred complaints made to police, thirty-one lead to charges, eleven to convictions and “just six lead to a prison sentence.” She added that, because most sexual crimes are not reported, the overall conviction rate is “thought to be” just one percent, though changes in procedures led to a 34% increase in cases reaching court in the preceding year.
Viewers then saw interviews with two people. Sexual abuse survivor “Hannah”, through a dimmed lens, said she was pleased that 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 under-secretary for justice at the time, Jan Logie, called it “shocking” that it has taken this long for any government to find out what happens after victims report, and lamented that recent changes are just “tinkering around the edges.”
Stark finding...not good enough...working to make it better...traumatic...shocking...just a piece of evidence...tinkering: the language of the news report conveyed the impression of inaction and inhuman treatment, of miscarriages of justice in numbers so massive that it is a national scandal. Lazy and hidebound detectives? A biased legal system? In fact, neither, because the numbers have been shoehorned into the only acceptable narrative. Every word in this item – the news script, the comments by Hannah and by justice under-secretary Jan Logie, the Ministry report itself – implies that sexual suspects can be divided into just two groups: perpetrators who do jail time and perpetrators who walk free. It suggests the government has a social and moral duty to boost the former group at the expense of the latter. Consistent use of the word victim instead of complainant confirms this bias. In plain terms, there is a national emergency – but only if we assume that all defendants are guilty and that the only good trial is a show trial.
Every media report on sexual crime works from the same assumption. In an online article on stuff.co.nz by Brittney Deguara on November 26 2019 Kathryn McPhillips, executive director of HELP, an Auckland support service for victims of sexual crime, took issue with anyone insensitive enough to question the word victim for people who make sexual accusations. She conceded that complainant may work as a legal term, but insisted it isn't accurate in the world of victim support. “If you've been harmed you're a victim,” she said. This is a peculiar comment, because it begs the question of whether the sexual abuse occurred. If it didn't, you've suffered no harm and therefore aren't a victim, but events appear to be mere details to Ms McPhillips. Are feelings enough?
The giveaway word in the TV One item was reported. It specified that the numbers include all sexual accusations reported to police – the earliest stage of any investigation, when all cases are only allegations. Some of these go to trial and result in acquittal for the best possible reason - the defendant is innocent. Other cases don't go the distance, for reasons that are varied and often complex. Granted, police may 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. However, in other cases the complainant may retract for any of a host 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 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, sympathy or sainthood – even for a warped kind of love. A more complete list of reasons has been compiled by Bob Mellors and can be found here.
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. An allegation can't be treated as genuine until the trial verdict, and witnesses can never be considered truthful simply because of who they are. That's one reason we have trials.
This skewed reporting isn't a purely Kiwi phenomenon. In an article in the Sydney Daily Telegraph on February 21 2021, crime reporter Ava Benny-Morrison reported that “Of the incidents reported to NSW Police in 2018/19, only about three per cent ended in a guilty conviction.” An accompanying graphic showed that just under 15,000 sexual offences were reported to NSW police in 2018/19, and 34 percent of the cases that made it to court resulted in conviction. The others either produced an acquittal or were withdrawn for “a host of reasons, including because the victim can’t face having their word and intimacy tortuously picked apart in a courtroom.” If there is a host of reasons for attrition, why choose only that one? For example, why not write that it's hard to get data confirming the frequency of the various reasons for withdrawal and add, “One reason is that the complainant has changed her mind”?
With such blinkered reporting, the public can hardly be blamed for dismissing the importance of wrongful sexual accusations. Yet they 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.
I first need to write a few words about words. In the examples that follow I refer to accusers as female simply because they usually are, just as sexual suspects are usually male. I acknowledge that there are many exceptions to both of these patterns. I also use activists to refer to people who strive to increase convictions for sexual crimes and to improve the treatment of rape and sexual assault victims. Any term here can seem confrontational. I don't intend the word itself to be disparaging, and anyone of course has the right to campaign on behalf of one kind of victim, just as I campaign for a different kind; that is the nature of advocacy. They are free to call me the same. I just need a noun to refer to my statistical adversaries on this issue.
A small number of activists are adamant that false sexual accusations never happen at all. For example, prominent New Zealand campaigner Louise Nicholas has said, “Women don't lie about this stuff.” This is a bizarre claim. Activists must at least concede, for example, that innocent black men were lynched after false rape allegations by white Southern women. Is it really likely that women have made wrongful allegations only in one part of one country, only out of racial bigotry, and only in the past?
Fortunately, most concede 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 muscles its way in and 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. Working men who have understandably become nervous about meeting or mentoring female colleagues are either grandstanders or wimps, because no honourable man needs to harbour any fears and the only issue is the vast number of predators who escape punishment.
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. Deborah Tuerkheimer, writing in the Ms magazine blog in April 2017, asserted that “false reports of rape are uncommon”; in an article in the Independent, Sarah Green, co-director of the UK's End Violence Against Women, referred to “the small number of false allegations against men”; Antonia Harrison in Cambridge University's Varsity online magazine in October 2020 made the puzzling claim that “men are 230 times more likely to be raped than to be falsely accused of rape”, a figure echoed by feminist writer Laura Bates; Women Against Rape in the UK wrote an open letter to the director of public prosecutions, urging that no women ever be prosecuted for making false rape accusations, calling such cases “extremely rare” and insisting that prosecutions are “not in the public interest”; 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”. Not all the strident commentators are women; one of the most callously dismissive comments came from an MSNBC interview in which Bill Keller from the Marshall Project said, “The idea that women make this stuff up is a pernicious myth.”
British columnist Helen Lewis is certainly a moderate. Her piece Why I've Never Believed in “Believe Women” in the Atlantic on May 14 2020 very reasonably drew attention to the assumptions and excesses of the #metoo movement. She tarnished this by writing that false allegations are “extremely uncommon”, and as evidence supplied a link to 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 are 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 false sexual allegations are stopped in their tracks early in the investigation, but an unknown number are not. The effects of each one depends on how far it reaches along the continuum of increasing terror for an innocent suspect: accused, questioned, charged, tried, convicted. Recent changes to the legal terrain have made it more likely for false accusations to extend further along that line. Dr Ros Burnett, senior research associate at the centre for criminology, Oxford University, has outlined those conditions here: https://factuk.org/2017/05/09/why-it-is-too-easy-for-innocent-people-to-be-wrongly-accused-of-sexual-abuse/.
Burnett is referring to the UK, but most of what she writes applies to other countries. Kay implies that any man hit with a sexual accusation which he knows is false should carry on with life as normal, safe in the knowledge that he will suffer no injustice in our even-handed legal system. Yet even a trial which produces an acquittal is a kind of tragedy, because it could cost him his job, his mental health, his reputation and his savings. When there is uncertainty, as there so often is in sexual accusations, the official ruling to “let a jury decide” appears so impartial, so enlightened. However, any falsely accused suspect will see it in a different light, especially when he knows he can be convicted just on the word of his accuser. Overwhelmed by stress, some innocent suspects kill themselves. If Kay has any sympathy for people like them, she keeps it to herself.
Wrongful accusations also lead to convictions far more often than Kay suggests. Admittedly, the private nature of most sexual crime means that genuine cases sink into the mire of he said/she said, and it can be hard to convict offenders. In most developed countries, laws have therefore been changed to 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.
Fortunately for genuine victims, nowadays sexual crime policies are more accommodating towards accusers than in the skeptical past. However, the more inclusive the system, the higher the proportion of false positives, as liars, fantasists and pretenders are gathered in the net. This especially applies to “non-recent” accusations. The result is that innocent men – many of them elderly – languish in jail, abandoned as perverts by all except a tiny number of supporters among family and friends. A local lawyer told me false historical allegations are such an epidemic that most men convicted are probably innocent. 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 about the way the statistics of false sexual accusations are misinterpreted.
It's an error made with puzzling frequency, and often by powerful people who surely know better. Justifying his Labour Party's #believethevictim policy, former New Zealand justice minister Andrew Little denied there is evidence that false sexual allegations are common. Current police minister Poto Williams is so certain all suspects are guilty that she supports transforming the justice system so that sexual suspects are in effect deprived of the right to remain silent, overturning a legal safeguard with centuries of pedigree. Legislation currently before Parliament will also require defence lawyers to cross-examine complainants in advance, before the important issues in a trial become apparent. This is ostensibly to reduce stress for the complainant, but its main purpose is to bring more convictions.
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. As CPS director, he 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. Starmer himself acknowledged that false accusations happen, and even conceded that they can destroy lives. He promised that the CPS would “rigorously” pursue in court any false accuser. Yet even a glance at his organisation's documented policy for this crime reveals a whole series of obstacles to prosecution.
Here are those prosecution guidelines, updated in 2019 but not in a way that is likely to give any more hope to the falsely 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, offering many pretexts for abandoning prosecution and assuring that even a liar is labelled a victim. It's only with some logical and legal gymnastics that it's possible to treat them as reasonable default assumptions, even if they are sometimes valid. For example, when an accuser is shown to have fabricated injuries, prosecutors should consider that she is a genuine victim but is worried that she won't be believed unless she can show physical effects. Prosecutors are also encouraged to expect that an accuser who retracts her allegation is likely to retract that retraction some time in the future. The unforgiveable forgiveness the CPS extends to false accusers is encapsulated in the following clause: “Prosecutions for these offences will be extremely rare and by their very nature they will be complex and require sensitive handling.”
Any potential prosecution which jumps through these evidential hoops is almost certain to stumble on the final obstacle of “public interest”. In fact, there are two distinct hurdles here: individual and collective. The former is psychological. Even if her accusation is provably untrue, policy encourages authorities to label a false accuser as probably sad, possibly mad but almost never bad. 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. The latter “public interest” hurdle centres on the belief, almost universally held among activists, that prosecuting false accusers will dissuade genuine victims of sexual crime from reporting. This assumption has determined prosecution guidelines – either written or unwritten – almost everywhere.
The same reluctance to prosecute wrongful accusers prevails all over the world, though details vary. A retired detective from Virginia who had specialised in sexual crime told me that wrongful allegations are “common”. On those occasions when he sought to pursue criminal charges against false accusers, he often found the local prosecutor too concerned about politics to endorse his recommendation. In forty-seven states, including his own, district attorneys are elected, not appointed, and being seen to go after “vulnerable” women isn't a vote-winner. In retirement the detective even began to write a book that revealed the truth, but eventually abandoned it because he just wanted to put it all behind him.
Activists complain that sexual offenders escape justice. True, but prosecutors never abandon any clearly winnable sexual case because pursuing it would run against public interest. Recently I saw on television a wheelchair-bound man in his eighties, face obscured, being pushed by distressed relatives into the courtroom to face charges for what he may have done five decades ago. Is it in the public interest that he is prosecuted? I'm not sure, but I find it disturbing that no one in government or the media even ventures to ask the question. As prosecution guidelines for sexual crimes are vastly different from prosecution guidelines for false accusations, conviction numbers must be analysed and compared with great caution. Paradoxically, activists themselves can hardly claim they don't grasp the mathematics. After all, they deny that we can deduce sexual crime numbers from conviction numbers. No one dares claim that low conviction rates for sexual crime can count as proof that it is rare, but activists insist that low false allegation conviction rates can – in fact, must – count as proof that false allegations are rare. The goose enjoys all the data advantages while the gander gets nothing.
There is huge political pressure in the UK, as there is here in New Zealand, to boost convictions for sexual crimes. Most British activists become apoplectic with fury that any false accusers are prosecuted and insist the only injustice is that prosecutors are too reluctant to go after real perpetrators. Don't blame Mark Pearson for disagreeing. He's the Londoner prosecuted (and thankfully acquitted) after “penetratively” assaulting a female passerby as he walked through Waterloo Station carrying a newspaper in one hand and a briefcase in the other. He barely broke stride. An expert called by the defence showed that the CPS were so intent on a conviction that they slowed down the CCTV footage to make the offence appear possible. This must have been deliberate act, but of course no one at the CPS faced consequences.
Charging decisions certainly require finely balanced legal and ethical judgment, and I agree that not all false accusers should be prosecuted. Much depends on the intention, the duration of the accusation (many retract very early under careful questioning) and whether any victim is named. When a false allegation identifies no “perpetrator”, a lesser charge is appropriate because misleading the police is the most damaging crime the wrongful accuser has committed. However, when she names a victim, the ethical outrage is that she has threatened to extinguish permanently the happiness of another human being, and justice demands a more serious charge. However, victimhood has become the default, which keeps all but a tiny number out of the courtroom. In fact, the former head of the sexual crime unit of Greater Manchester Police even admitted that his district never prosecuted false accusers as a matter of policy, because they all have “some sort of vulnerability”. This means that if every sexual accusation were demonstrably a lie, the official false allegation rate for his district would still add up to zero.
Despite the legal privilege false accusers enjoy, a small number are incarcerated in the UK every year. Jemma Beale was sent to jail after her fifteenth accusation. One of her victims was jailed for seven years, and another was forced to flee the UK to escape prosecution. Beale duped a friend into backing her stories, but the friend eventually had an attack of conscience and came clean, revealing that Beale had made it all up and gloated about the compensation she'd received. The fact that authorities believed Beale for so long confirms what the CPS criteria suggest: UK police bend over backwards to avoid taking false accusers to court. How many life-destroying lies does it take for the CPS see a pattern? Imagine the fear and the fury of victims one through fourteen of Beale's callous campaign.
False accusers also escape justice here in New Zealand. A well-known senior journalist here wrote in an email to me, “I would absolutely agree that police should pursue false complaints to the full extent of the law and would be interested to see any hard data that suggests they are not.” The full extent of the law? Let's see. 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. Her “lie then cry” allowed her to avoid prosecution for a serious crime. The narrator took a benign and avuncular stance and she faced no legal action – possibly a just and humane decision in the circumstances, but it shows that false accusers in New Zealand hardly face the full extent of the law. Add this case to the global catalogue of public interest triumphs for false accusers.
Very occasionally offenders are prosecuted here, but sentences are light, and I'm not aware of any false accuser in New Zealand who was judged malicious enough to do jail time. When Rebecca Little of Dannevirke was convicted and sentenced to nine months' supervision for making a false rape complaint in 2009, judge Oke Blaikie said, “People have been sent to prison for doing what you did.” However, that was probably just finger-wagging and I'm not convinced he'd done his homework. Dannielle Weir, from Blenheim, was convicted in February 2019 for making a false rape accusation against an identified victim but received no sentence. Her lawyer worked hard to have her name permanently suppressed, but judge David Ruth quite rightly refused this. This fell far, far short of the full extent of the law, but merely by being prosecuted she faced more consequences than other wrongful accusers.
False complaints certainly appear common. In 2005, officers at the Hornby police station in Christchurch admitted they had to struggle with a spate of false sexual complaints. They clearly had had enough, so one woman was prosecuted, presumably as a token deterrent, after twenty police spent over $15,000 worth of police time on her alleged abduction and assault. She was sentenced to 150 hours’ community work. In June 2008 Detective Senior Sergeant Chris Page reported that police in Hamilton – a city of around 100,000 people – had received three provably false rape complaints within a week.
In November of the same year Christchurch police charged 21-year-old Alyshia Clyne with making a false charge of rape. She alleged that an unidentified man raped her in an alleyway while she was out drinking with friends. The police cordoned off parts of the central city, causing disruption to nearby businesses, while ten officers investigated. Video surveillance cameras and a statement from her friend quickly showed her story was fantasy. Tellingly, judge Brian Callaghan said, “I am troubled by the number of false complaints.” Her name was originally suppressed, because her lawyer said there were “medical and mental health issues” that needed to be explored. But of course; there always are. She was sentenced to 75 hours’ community work: once again, far less than the full extent of the law.
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 Evening Post 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.”
Most of the above comments from detectives and a judge are from some time ago, and a cynical activist may be suspicious that I had to trawl so far back into the past to uncover these examples. Perhaps I didn't want to reveal that false allegations have actually become less common. That's possible, but another explanation makes more sense: it's about fear. In the past few years, in the shadow of #believethevictim, false allegations have become a very touchy subject, and it's now unacceptable to mention them except to insist they're rare. Any detective or judge infringing this unwritten rule risks a fierce activist backlash and, I suspect, a career freeze. The truth can now be obtained only from retired police officers.
My best evidence is closer to home; it's my own experience that has helped confirm that false accusers almost never face consequences and that available data on false accusations therefore offers no 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, 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 accusation that seems more plausible than the twenty-eight that failed. No untruths, not even blatant lies, will ever be sufficient to discredit her story and have us permanently cleared. It's like a diagnosis of mild cancer: it's unlikely to kill us, but at the very least we'll die with this open file looming over us.
Friends and acquaintances express horror at such intransigence, callousness and plain stupidity by the local police. Their concern is commendable, but they miss the point. I don't live in terror that in 2045 I'll be dragged into court from my rest home. It could happen but it's unlikely, and waiting for disaster isn't a satisfying lifestyle. My main concern isn't personal and possible but general and certain: it's about 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. Adding intolerable insult to the injury we all suffered, Verity is no doubt still called the victim. Our file is still 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.
In 2008 journalist Lindsay Mitchell wrote to New Zealand Police asking about false allegation numbers. She was informed that although they do record statistics under a heading of “False Statement or Declaration”, such incidents are not subgrouped into types of alleged crimes, so there is no way to find out how many are sexual. That is the obvious hurdle to using such data as a basis for ascertaining rates of false rape complaints. Of course, there is another hurdle. Even if false statements were subgrouped by type, the total number of sexual false allegations would be zero: police would simply classify false allegations as genuine complaints which don't yet have sufficient evidence to prosecute.
It's revealing what happens when an accuser admits she's made it up, especially if the news comes as a bombshell in court. The Otago Daily Times reported in 2017 that a rape trial in Dunedin was spectacularly abandoned after two days when the accuser admitted the story had been an elaborate fantasy. She first made the allegations in 2013, when she was thirteen, then added more in 2015. Defence questioning described as “firm but fair” upset the girl and caused her to take a break. When the trial resumed, she admitted none of her accusations were true and that she was having family troubles at the time. And so the trial was over.
In the frenzied scramble to limit damage to the #believethevictim doctrine, comments in the ODT by two people interest me. Judge Crosbie, presiding, said that the case was “out of the ordinary” and added defensively that the result was “a trial process that's worked.” By definition the trial process did indeed work, but only because by stopping it dead the judge made a decision an average ten-year-old would be ethically mature enough to make. It was the curveball pitched by the young accuser that brought justice. An earlier process – the police investigation which led to the trial – was certainly shown to have failed. The combination of investigation and trial turned the suspect into a victim, because any case that goes to court is a catastrophe for the innocent accused – emotionally, socially, financially – no matter what the result.
The ODT also quoted Dunedin Rape Crisis spokesperson Anna Hoek-Sims as saying the two things that activists always say when an accusation is shown unequivocally to have been false: that the real damage caused by such false allegations is that they make it harder for real victims to come forward, and that false allegations are rare. In regard to the first, I've already written (above) about the many reasons for attrition in sexual cases. False accusations may indeed play a role, but I wonder how Hoek-Sims can know their relative importance. Has she looked into studies of the reasons why some accusers don't come forward or back out some time after? Did anyone at the newspaper ask her for data to confirm this claim? Such confirmation aside, it raises my hackles that such a comment offered only conjecture about the effect on unknown other “survivors” but said nothing about the suffering of the person we know for certain was the victim here: the wrongly accused man. Clearly, treating exonerated suspects as victims doesn't fit the narrative.
Hoek-Sims' second predictable pronouncement – that only about two percent of sexual accusations are based on fabricated claims – removes any doubt that for activists, facts are hostile witnesses. In this field of uncertain statistics, most of them consistently and confidently offer the specious precision of two percent, a number close enough to zero to dismiss false allegation victims as acceptable collateral damage. It's a figure that has become so accepted as an element of doctrine that no one within the movement bothers to question it. Almost no one outside – and certainly no editor – ever challenges it, but from where can it possibly be obtained? From the tiny number of convicted liars and fantasists? Certainly not, because of prosecution policies I've already mentioned. But if not from there, then from where? All anyone knows about the number of false allegations is that it comprises A+B, where A is the tiny group convicted (known) and B is another group not convicted and almost certainly not prosecuted (unknown) because police had a policy of excusing false accusers out of “public interest” or some other pretext. I'm the one always pressed for hard data, but data seldom comes any more flaccid than this two-percent factoid.
Hoek-Sims also asked readers to remember that “people who make false complaints often make them for another reason, such as personal issues, health issues or even past history of sexual violence” and that “when something like this happens, the person can be forgotten.” This leans on the familiar vulnerability/public interest angle, of course. Hoek-Sims implies that no one is entitled to claim victim status unless they first belong to a predefined group, and they then remain a victim no matter what they say or do, and no matter what did or did not happen to them. When Hoek-Sims mentioned personal and health issues, she seemed to be implying mental illness. Of course, mentally ill people may be sexually abused – in fact, they may be especially vulnerable to sexual abuse because perpetrators probably assume their accusations will not be believed. However, mental impairment alone can hardly be used as evidence that any abuse has occurred. The chicken-and-egg principle surely tells us that an accuser's mental illness may pre-date the alleged abuse and, depending on her particular condition, may be good reason to doubt her account.
What hope is there that a victim of a false accusation can receive justice when accusers who are shown to have lied – who have even admitted that they lied – still enjoy the lustre of victimhood? Legal protocol should always be flexible enough to allow for public interest to overrule the stark provision for prosecution, to discard set procedure and descend into the particular and the human. However, victim is also particular, not general, and Hoek-Sims appears so tethered to the #believethevictim philosophy that she's incapable of acknowledging the suffering of false allegation victims. A wrongful accusation is a crime which can destroy lives. It is outrageous to claim the perpetrator of any particular crime always deserves help rather than prosecution. Hoek-Sims regretted that “the person can be forgotten.” That's true, but which person has Hoek-Sims forgotten?
Of course, prosecution would have been inappropriate in this case. When the girl made the false complaints she was too young to be held responsible. By the time she appeared in court she was old enough, but she deserved to be commended for having the courage to come clean. What matters about this trial isn't the issue of punishment but what broader conclusions we're entitled to draw from its abandonment.
Earlier I mentioned the case of serial false accuser Jemma Beale in the UK. If it weren't for the eventual courage and honesty of her friend, who testified that Beale had lied, innocent people would still be in prison. In this respect the two cases are similar, because in each someone summoned the strength to tell the truth. The Dunedin judge insisted the abandonment was “out of the ordinary”, and he was right. However, what was extraordinary was the retraction by the complainant. Little lies can get out of hand, and by then it takes moral courage to disown them. In the absence of corroborative evidence about the truth of complainants' testimonies, it would be a fair assumption that there are many, many more cases like this where the accusation has been fabricated but the accuser – or the accuser's friend – has neither the courage nor the scruples to admit it. The outcome will be a false positive and a miscarriage of 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”).
We have to know how to process numbers, and this isn't always intuitive. Here's a thought experiment. Imagine an early activist back in 1960 – a pioneering feminist journalist, perhaps – who asserted 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, that's just anecdotal. Look at the low conviction rate. Where's your evidence?” Perhaps even the infuriating, “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.
All doors are locked to anyone denying that false allegations are rare. This reminds us that the most damaging media bias is more fundamental than any editorial slant; it comes from initial acceptance and rejection. For those who determine what the public hear, see and read, there is no mightier power than the power to ignore. Activists have all the access to media and to government, so the narrative is wholly theirs. Several times I have written brief articles about this 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 any data has been repackaged in a way that gifts it to my adversaries, so it is worse than useless. Almost all wrongful allegations – including the one against us – are filed as genuine sexual accusation cases which as yet have insufficient evidence to proceed.
The "victims" are the ones with power. It's ironic that activists and “survivors” sometimes lament that they lack a voice, because the unwritten media rules are shamelessly tilted in their favour. I've always tempered anything I've written on the subject of false allegations with concessions and qualifications, and I've revealed sources of information. Yet this has never been enough to get so much as one word on a page. “Hannah”, from the TV One news item with which I opened this article, was permitted to complain that the experience of taking her sexual complainant through the system was “traumatic”, but even a toned-down reference to our inhuman treatment by police was enough to torpedo two articles I wrote.
In another, 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. Activists are never pressed to justify their usually preposterous factual claims, so they have licence to forge a convenient certainty from doubtful sources or no sources at all – just from a comment someone once made or from an assumption that's been floating around the internet long enough to masquerade as truth.
Valerie Wise, director of Preston Domestic Violence Service in the UK, said, “I believe ninety-nine percent of people who make complaints are telling the truth but it is difficult to prove.” Indeed it is, so why offer such spurious precision? From where can this percentage be derived? The TV One news item mentioned that many sexual crimes are not reported. This lowers the effective conviction rate further, to a level “thought to be” just one percent. Thought by whom, and on what basis?
I accept that many sexual crimes occur in radar blind spots, but no one can know the numbers. Even if they are reported, we cannot be sure if they are genuine; if they aren't reported, we should be even more doubtful. How can such a figure possibly be obtained other than by asking people if they have been victims? Yet if anyone decided to determine the frequency of false sexual accusations by asking people (mainly men) whether it had happened to them, no activists would trust the outcome. They would be right to dispute the results, because self-reporting is always questionable. Of course, they wouldn't need to challenge the numbers, because no such report would ever make the news.
For activists, the universal and systemic oppression of women – in law as much as anywhere else – is undeniable, and they refuse to be unsettled by doubts. For example, they assume they know why some juries have the audacity to acquit in the face of #believethevictim; they attribute such heresy to common acceptance of “rape myths”. Activists are simply reluctant to concede that juries sometimes acquit for the very good reason that they 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.
Blogging lawyer Joshua Rozenberg's 2020 Substack article entitled Belief by Juries in Rape Myths is a Myth cites research by UK professor Cheryl Thomas QC which also questions activist assumptions about rape myths. Thomas questioned 771 actual jurors just after they had delivered verdicts. Rozenberg quotes Thomas as reporting that “The overwhelming majority of jurors do not believe that rape must leave bruises or marks, that a person will always fight back when being raped, that dressing or acting provocatively or going out alone at night is inviting rape...or that rapes will always be reported immediately.”
I'm therefore entitled to doubt that any jury these days acquits because, for example, the complainant's skirt was too short. In any case, 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 are probably the ones that produce false positives, rather than the false negatives activists claim. What follows, then, are some rape myths from the dark side.
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 those diligent and fair investigators had good cause to pursue it. When even the prosecution admits there is 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. In such cases, lives can be destroyed by a complainant's performance art – and it's never more convincing than when a fantasist herself is certain it's true. I suspect that jurors often ask one another the question, “Why would she be lying?” The value of this question depends on its tone. It's useful only as a straight, non-rhetorical question meaning “It's possible she's lying. If she is, why is she doing so?” As a rhetorical question (probably introduced with a needling “But...” in response to a skeptical juror) it's 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 whole catalogue of reasons not to be telling the truth – or no discernible reason at all.
I wonder how many innocent defendants are convicted because otherwise level-headed jurors lack the imagination to grasp how much weirder some people are than they are themselves. I once discussed an almost certainly false historical case with a friend. She insisted the accuser, who was the defendant's daughter, couldn't have been lying 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?
I opened with a TV One news item, in which former under-secretary for justice Jan Logie said that recent changes making prosecution easier in sexual cases were just “tinkering around the edges.” Mere tinkering may not last long. The goal she shares with most activists is to replace juries in sexual cases, because they persist in that nasty habit of acquitting. In this brave new world, bench trials would replace jury trials. 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, which achieved some prominence during the trial of Harvey Weinstein, 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. I believe that in some US states sexual assault victims had to report within twenty-four hours, which was an intolerable injustice.
However, it is a small step from the enlightened “listen to the accuser” to the fatal “believe the victim”. 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.
After the Blenheim case (above) judge Ruth asked people to imagine what would have happened if friends had not confirmed that Dannielle Weir had suffered no rape. Here's a scarier what if. There's no statute of time limitation on rape. What if she had made this accusation in twenty years' time? Fading memories and the lack of forensic evidence would reduce the case to he said/she said. The presumption of innocence has already become a relic for people accused of such crimes. If we still have jury trials two decades from now, the prosecution would implore jurors to convict the suspect if Weir's story had “a ring of truth”, and there's an even chance they would. If juries have been scrapped Weir's victim would be doomed, because on what basis could a compliant and rape-myth-certified judge find him innocent?
In effect, the accusation will have become the evidence – an insidious erosion of the once-cherished principle of presumption of innocence. The composer Dmitri Shostakovich kept a bag packed in case his music fell foul of the Stalinist authorities and he was abruptly bundled off to the gulag. If “trauma-informed” presumptions are taken any further in sexual investigations, it may be time for all men to prepare for the worst. An exaggeration for effect? Only slightly. As twitterata Anne Raine suggested, men should at least be advised to keep a high-powered lawyer on speed dial.
The TV One news item called the prosecution results “not good enough,” and reassured viewers that the government would strive to “do better.” Language like this is at least odd when applied to trial outcomes, but when functionaries of the state use it, it's frightening. 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 naturally 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 gone up. How many would be enough? I'm not sure what Stalin achieved, but Communist China boasts 99.9%. Now there's a useful benchmark.
Is this a war between activists and supporters of the falsely accused? In one sense, yes. Ideally it wouldn't be; ideally both sides would be motivated by their shared humanity and seek justice for everyone who has been wronged. Unfortunately, activists recognise only one kind of victim and dismiss with a derisory shrug the numerically lesser tragedy of false sexual accusations. They brand anyone who pursues the issue as a men's rights activist and therefore beneath contempt. In another sense it's barely a skirmish. Governments have the deepest war chests and chose their side decades ago. This means that activists have such all-conquering power, money and influence that it's like fighting the 82nd Airborne Division with popguns. The unfunded keyboard warriors for the falsely accused are so few, so scattered and so powerless that we can simply be ignored.
We'll battle on, of course. The odds are hopeless, but we can't abandon the campaign while one innocent person is in jail simply because someone who seemed credible said he was guilty.