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Cambridge Law Journal,65(1), March 2006, pp. 128–158
Printed in Great Britain
FALSE ALLEGATIONS OF RAPE
PHILIP N.S. RUMNEY*
I. INTRODUCTION
A. False Allegations of Rape in Law and Its Enforcement
THERE can be little doubt that the spectre of false rape allegations
has significantly influenced the development of legal doctrine and
its enforcement. The fear of false allegations has been used to
justify evidential rules in cases involving sexual offences such as the
corroboration warning,
1
the retention of the marital rape immunity
2
and continues to influence police and prosecutorial decision-
making.
3
Sir Matthew Hale’s seventeenth century opinion that rape
‘‘is an accusation easily to be made and hard to be proved, and
harder to be defended by the party accused, tho never so
innocent’’,
4
and the suspicion of rape complainants that this view
represents has figured prominently in the legal response to rape.
Across many jurisdictions, judges, legal practitioners and scholars
have commented upon the ease with which women, children and
sometimes men can fabricate an allegation of rape and how difficult
it is to refute such claims.
5
This suggestion has been made by
* Reader, Division of Law, Sheffield Hallam University. I would like to thank my colleagues
Kevin Williams and Rob Heywood for their comments on earlier drafts of this paper. All
views expressed within this paper remain my own. Special thanks go to Nina Lorusso who
kept me talking about anything other than this paper.
1
The rule that jurors in cases involving sexual offences be warned of the dangers of relying
upon the uncorroborated word of a complainant was modified with the enactment of s. 32(1)
Criminal Justice and Public Order Act 1994. Section 32(1) gives judges a discretion as to
whether a warning is given. The Court of Appeal has made clear that such warnings should
not be given unless there is an evidentiary basis for the suggestion that a witness is unreliable
and that ‘‘[t]his will not be so simply because the witness is a complainant of a sexual
offence’’: R. v. Makanjoula [1995] 3 All E.R. 730, 733.
2
Criminal Law Revision Committee, Fifteenth Report, Sexual Offences Cmnd. 9213 (1984)
paras. 2.69, 2.74.
3
This issue is discussed in detail later in this article: below notes 20–102 and accompanying
text. For discussion of prosecutorial decision-making, see: L Frohmann, ‘‘Discrediting
Victims’’ Allegations of Sexual Assault: Prosecutorial Accounts of Case Rejections’’, in P.
Searles and R.J. Berger (eds.), Rape and Society: Readings on the Problem of Sexual Assault
(Oxford 1995).
4
M. Hale, History of the Pleas of the Crown (London 1971 ed.) 635, cited in J. Taylor, ‘‘Rape
and Women’s Credibility: Problems of Recantation and False Accusations Echoed in the Case
of Cathlees Crowell Webb and Gary Dotson’’ (1987) 10 Harvard Women’s Law Journal 59, p.
75.
5
See, e.g.R. v. Henry and Manning (1968) 53 Cr. App. R. 150, 153; R. Heath, ‘‘Jail for
woman who claimed rape ordeal’’ Sheffield Star June 10, 2004 (trial judge quoted as stating
‘‘... it is easy to make a false allegation of rape’’, at 9). At an Old Bailey rape trial in 1993
Smedley J. stated: ‘‘Experience has shown that people who allege sexual offences, whether
128
judges when issuing the corroboration warning, during sentencing
appeals and underlies a proposal by one judge who argued for a
register of women who have made false allegations of rape.
6
It is perhaps surprising, therefore, that while the issue of false
allegations appears significant in the treatment of rape by the
criminal justice system, there has been little detailed attention given
to the reliability of the evidence on the prevalence of false
allegations. The recent joint HMCPSI/HMIC report on the
investigation and prosecution of rape, for example, noted that there
is a ‘‘scarcity of research’’ by police into the rate of false
allegations and police recording practice.
7
Consequently, there are
several reasons why the study of false allegations should be
included in discussions concerning the enforcement of rape law and
associated legal reform. The first reason is that there appears to be
a widely held view that false allegations of rape are common and
easily made by vengeful or desperate women,
8
mirroring media
coverage that cites high estimates as to the number of false
allegations.
9
The second reason is that incorrect or unreliable
assumptions about false complaints provide a poor basis upon
which to develop appropriate policy responses to rape. Indeed, legal
scholars, law reform bodies and interested pressure groups have
proposed or rejected reform measures that rest on untested
assumptions as to the frequency of false allegations.
10
Assumptions
women, men, boys or girls for some reason or no reason at all tell false stories ... Allegations
... are relatively easy to make and are difficult for a man to refute’’, quoted by S. Lees,
‘‘Unreasonable Doubt: the Outcomes of Rape Trials’’, in M. Hester et al. (eds.), Women,
Violence and Male Power (Buckingham 1996), 110; A. Pitts, ‘‘Difficulties Experienced in Legal
Practice’’ (1996) 36 Med. Sci. Law 140, 145. For numerous examples from the United States,
see.Taylor, above note 4, 74–81.
6
Id.InGoodwin (1989) 11 Cr. App. R. (S.) 194, 196 the Court of Appeal considered a
sentencing appeal involving a woman who had been imprisoned for three years for perverting
the course of justice, having made a false allegation of rape. In upholding the trial judge’s
sentence Lord Lane C.J. stated: ‘‘As everyone knows rape is an easy allegation to make and
may be very difficult to refute.’’ J. Temkin, Rape and the Legal Process, 2nd ed. (Oxford 2002)
7, note 43.
7
Her Majesty’s Crown Prosecution Service Inspectorate/Her Majesty’s Inspectorate of
Constabulary, A Report on the Joint Inspection into the Investigation and Prosecution of Cases
involving Allegations of Rape (2002), para. 6.18.
8
One British survey that examined young people’s attitudes to rape found that 68%of female
and 81%of male participants agreed with the statement that ‘‘women cry rape the next day
when really they have just had second thoughts’’ ( p. 15). In group discussions some
participants argued that it was ‘‘easy’’ for a woman to accuse a man of rape, that there was
little chance of men proving their innocence when accused of rape, that women could
convincingly lie about being raped and that women cry rape ‘‘a lot’’ ( pp. 26–28): S. Burton et
al.,Young People’s Attitudes Towards Violence, Sex and Relationships: A Survey and Focus
Group Study (Edinburgh 1998).
9
See e.g. A. Ahulja, ‘‘A question of rape’’ The Times (Supplement) 6 April 2001, 2. See also N.
Gavey and V. Gow, ‘‘ ‘Cry Wolf,’ Cried the Wolf: Constructing the Issue of False Rape
Allegations in New Zealand Media Texts’’ (2001) 11 Feminism & Psychology 341.
10
See e.g. B.J. Cling, ‘‘Rape Trauma Syndrome: Medical Evidence of Non-Consent’’ (1988) 10
Women’s Rights Law Reporter 243 (arguing for the reliability of Rape Trauma Syndrome as a
corroborative tool in rape prosecutions because inter alia ‘‘the danger of lying by self-reported
rape victims [to doctors is] very small’’, p. 258). Contrast also the approach to false
C.L.J. False Allegations of Rape 129
as to the commonality of false complaints have also fuelled calls
for the introduction of techniques specific to cases of rape and
other sexual offences designed to judge the truthfulness of
allegations.
11
Finally, false allegations raise the possibility of
miscarriages of justice; they divert attention from genuine victims
and may help to create a dangerous (and unjustifiable) scepticism
among criminal justice professionals to all allegations of rape.
B. Defining Terms
A key starting point in discussing false rape allegations is to
consider how this term should be defined. This is a critical question
and plays an important role in determining the numbers of
allegations of rape deemed to be false. At its most basic level, a
false allegation can be defined as the description of an event that
the complainant knows never actually occurred. Such a definition
suggests a conscious or malicious motive on the part of the
complainant. There may, however, be false allegations that fall
outside this definition. For example, there may be non-malicious
allegations from people with particular medical conditions who
genuinely believe they are victims of rape or other sexual offences,
but who are mistaken, as opposed to being malicious.
12
There may
also be circumstances that give rise to technically ‘‘false’’, though
non-malicious, complaints of rape. For example, there is evidence
that prior to the House of Lords’ ruling in R. v. R.
12a
the police
would sometimes classify complaints of marital rape as false
(otherwise known as ‘‘no-criming’’) despite the fact that the
complainant may have been reporting a genuine incident of non-
consensual sex.
13
Recent research by Kelly et al. has found another
category of technically false, but non-malicious allegations of rape.
They found a group of no-crimed cases that arose from
complainants who thought they might have been sexually assaulted
while asleep or intoxicated, but subsequent forensic examination
indicated that no sexual contact had taken place.
14
complaints of the Criminal Law Revision Committee, above note 2, paras. 2.69, 2.74 and the
Law Commission’s report on the abolition of the marital immunity: Rape Within Marriage,
Law Com No. 205 (1992) paras. 3.42–3.46.
11
For discussion see A.D. Parker and J. Brown, ‘‘Detection of Deception: Statement Validity
Analysis as a Means of Determining Truthfulness or Falsity of Rape Allegations’’ (2000) 5
Legal and Criminological Psychology 237.
12
See, e.g. P. Hays, ‘‘False But Sincere Accusations of Sexual Assault Made by Narcotic
Patients’’ (1992) 60 Medico-Legal Journal 265; M. Matas and A. Marriott, ‘‘The Girl Who
Cried Wolf: Pseudologia Phantastica and Sexual Abuse’’ (1987) 32 Canadian Journal of
Psychiatry 305.
12a
[1992] A.C. 599.
13
S. Grace et al.,Rape: From Recording to Conviction (London 1992), 6.
14
L. Kelly et al.,A gap or a chasm? Attrition in Reported Rape Cases, Home Office Research
Study 293 (London 2005), 46–47.
130 The Cambridge Law Journal [2006]
In 1986, as a response to a tendency of the police to no-crime
large numbers of rape reports, the Home Office issued circular 69/
1986 giving the police guidance as to when to classify a report as a
no-crime. The purpose of this circular was to improve the accuracy
of police recording practice in an attempt to ensure that the no-
criming label was attached only to those reports that were untrue,
rather than to cases where, for example, the complainant withdrew
her allegation or where there was insufficient evidence to
prosecute.
15
For an offence to be no-crimed the circular sets out
two criteria: that the complainant retracts the allegation and admits
to fabrication.
16
These criteria are clearly strict. To what extent they
may result in some complaints being crimed, when they are in fact
false, cannot be established using the existing research literature. In
this respect, Harris and Grace quote one police officer thus: ‘‘If
rape was treated as any other crime you would probably no-crime
a lot more. But because rape is treated as something special, and
indeed it is a serious crime, it is much more difficult to no-crime
it’’.
17
The Metropolitan Police appear to have adopted a policy that
does allow greater flexibility in designating an allegation as false.
18
It is evident, however, in research that has examined police
recording practice within the Metropolitan Police, that there is
widespread misuse of the no-crime designation. For example, in a
1999 study of the processing of rape complaints by the
Metropolitan Police, it was found that in the 123 reports that had
been no-crimed, most had been given this designation for reasons
other than the complaint being false or malicious.
19
The apparent difference between police definitions of what
constitutes a false allegation and the definitions set out in existing
guidelines raises two key questions: first, what is the actual extent
of the false reporting of rape? Second, does this existing evidence
provide a reliable foundation upon which to base policy decisions?
15
For discussion see: L.J.F. Smith, Concerns About Rape, Home Office Research Study 106
(London 1989), 8.
16
J. Harris and S. Grace, A Question of Evidence? Investigating and Prosecuting Rape in the
1990s (London 1999), 14.
17
Ibid., p. 15.
18
For discussion see T. Williamson, ‘‘Police Investigations-Separating the False and the
Genuine’’ (1996) 36 Med. Sci. Law 135, 137. Williamson notes that police officers may no-
crime where for example, the ‘‘victim’s evidence is substantially contradicted by forensic or
medical examination or by an independent witness’’ or ‘‘where there is substantial evidence
that the victim is suffering from delusion’’. (emphasis in original).
19
Above note 16, p. 14. Likewise, in an earlier study Grace found that 66%of reports were
designated as false for reasons other than that they were false or malicious: above note 13,
p. 6.
C.L.J. False Allegations of Rape 131
II. EVIDENCE ON THE PREVALENCE OF FALSE ALLEGATIONS
There is no shortage of research evidence on the prevalence of false
rape allegations. On examination what becomes readily apparent,
however, is that this research varies considerably in terms of
adopted methodologies and in particular, how each study judges an
allegation to be false. This section analyses studies in England,
Scotland, the United States of America and elsewhere. It is not
intended to be an exhaustive analysis of all studies of false
allegations. Rather it is intended to indicate the range of findings
between various studies and the relative strengths and weaknesses
of the methodologies and criteria that have been adopted.
A. England and Scotland
In England and Scotland there have been a number of studies that
have examined how the police record complaints of rape and
provide important evidence on the police no-criming of rape
reports. The first study to be discussed examined the recording of
rape complaints in two London boroughs between 1984 and 1986.
20
One of the areas of investigation for this study was how Home
Office circular 69/1986 altered recording practices. As already noted
above, this circular was an attempt to encourage police officers to
record rape complaints more accurately and to avoid the use of the
‘‘no-crime’’ label in inappropriate cases. Smith found that the
circular had a significant impact in that there was a 50%increase in
criming of rape reports during the three-year period under review.
21
During this time there were 447 allegations of rape reported to the
police, of which 215 were not recorded as offences. In
contravention of circular 69/1986, nearly half of these 215 cases
(101) were not recorded because of ‘‘insufficient evidence’’, with
another 91 not recorded because the complainant withdrew the
allegation. Included within the category of cases not recorded were
only 17 complaints that were deemed to be malicious, a rate of
3.8%of the total number of reported cases.
22
However, this study,
as acknowledged by its author, was limited. Smith notes that it was
not possible to tell whether reports that were not recorded because
of insufficient evidence, may in fact, have been false.
23
In subsequent Home Office research Harris and Grace examined
the progress of 483 reports of rape to the Metropolitan Police in
1996.
24
They found that the increase in the number of reports being
20
Above note 15.
21
Ibid., 23.
22
Ibid., 23–24.
23
Ibid., 25.
24
Above note 16, p. 3.
132 The Cambridge Law Journal [2006]
crimed was offset by the increased numbers that were designated as
involving ‘‘no further action’’ (NFA) and that 56%of all reports
were either no-crimed or NFA-ed.
25
They found that 25%of cases
were no-crimed, but that there was widespread misuse of the
criteria, with 57%of complaints being no-crimed for reasons other
than them being deemed false/malicious.
26
Consequently, the
number of reports no-crimed for being false/malicious in this study
was around 10.9%. The problem however, lies in the limitations of
this research—we do not know how police officers determined a
complaint to be false. Indeed, the recent HMCPSI/HMIC report
noted how little we know about the way in which police officers
come to their decision to no-crime:
This is clearly an area that could be pursued further to
establish if this is an issue of incorrect recording, a workplace
cultural issue, or what factors motivate those who make false
allegations of rape, be they male or female.
27
Other research that has examined police recording practice also
suggests misuse of the no-crime criteria. Gregory and Lees found
that 50%of the no-crimed cases were designated as such on the
basis of the ‘‘complainant’s failure to substantiate the allegation’’
and noted the ‘‘diversity of situations covered by this category’’.
Indeed, they found that the no-crime label was being used in highly
inappropriate circumstances such as when a complainant was
unable to give evidence in court because of a heart condition or
where the ‘‘victim obtained an injunction against the suspect and
subsequently withdrew [her] allegation’’.
28
Recent research by Lea et
al. further supports the argument that the police may be using the
no-crime designation in inappropriate circumstances.
29
The most up-to-date Home Office research on police recording
practice gives the lowest estimate as to the number of false
allegations within the domestic literature. While Kelly et al. found
that the no-crime designation was used in 22%of reported cases,
they also noted that it appeared to be used as a ‘‘dustbin’’ with less
than a third of no-crimes being viewed by officers as false
allegations.
30
The researchers note: ‘‘The ‘no-crime’ category
comprises a complex layering of different kinds of cases and
circumstances, many of which are not ‘‘false’’ in the literal meaning
25
Ibid., 12, 45.
26
Below note 61.
27
Above note 7, para. 6–18.
28
J. Gregory and S. Lees, ‘‘Attrition and Rape in Sexual Assault Cases’’ (1996) 36 British
Journal of Criminology 1, 4–5.
29
S.J. Lea et al., ‘‘Attrition in Rape Cases’’ (2003) 43 British Journal of Criminology 583, 593.
For discussion see below notes 182–183 and accompanying text.
30
Above note 14, pp. 38–39.
C.L.J. False Allegations of Rape 133
of this term’’.
31
Perhaps the most significant part of this study is
the attempt by the researchers to evaluate police designation of
rape reports by examining the information recorded by officers in
their case files. While acknowledging some limitations on the data
available, the researchers estimated that only 3%of reports were
either ‘‘possible’’ or ‘‘probable’’ false allegations.
32
As with other
studies, this figure is significantly lower than the estimates many
officers themselves gave as to the number of false allegations.
33
In addition to the studies of police recording practice, another
source of statistics on the extent of false reporting is from research
conducted by police surgeons. Maclean, for example, undertook a
study of 34 rape complainants he examined between 1969 and 1974.
He concluded that nearly half of these reports were either false or
probably false (see Table 1 below), with three being probably
genuine and 15 genuine.
34
In this study, the major problem was the
means by which Maclean determined reports to be false. It is
evident that those cases where there was a delay in reporting were
much more likely to be labelled as false,
35
as were cases where the
victim did not appear ‘‘dishevelled’’, where they did not appear
upset or were not seriously injured.
36
Maclean identified these as
key factors in distinguishing the genuine and false accusations,
37
though some of the cases he classed as false or probably false did
include such factors as injury, prompt reporting, distress and
agitation. Generally speaking it is difficult to find compelling
evidence to support Maclean’s conclusion regarding the rate of false
allegations because his evidence is often vague and open to
contrary interpretations. In a second survey by a police surgeon,
Stewart examined 18 allegations of rape and concluded that 16
were false. Of these 16, it was claimed that the complainant
admitted to making a false complaint in 14 cases. Leaving aside the
small sample size of this study, Stewart gives little information as
to the form or circumstances of these retractions. He does,
however, refer to one instance in which he claims that the case
‘‘was disproved on the grounds that it was totally impossible to
have removed her extremely tight undergarments from her
31
Ibid., 39.
32
Ibid., 50. The researchers adopted the police’s own internal rules for judging police
designations. Those criteria state that an allegation should only be designated as false where
‘‘either there is a clear and credible admission by the complainants, or where there are strong
evidential grounds’’ (at p. 50).
33
Ibid., 50–51.
34
N.M. Maclean, ‘‘Rape and False Accusations of Rape’’ (1979) Police Surgeon 29, 30, 38.
35
Ibid., 32.
36
Ibid., 33–35. However, such features are not reliable indicators that a report is false. For
discussion see P. Rumney and M. Taylor, ‘‘The Use of Syndrome Evidence in Rape Trials’’
[2002] 13 Criminal Law Forum 471.
37
Above note 34, p. 39.
134 The Cambridge Law Journal [2006]
extremely large body against her will’’.
38
However, as Temkin
comments: ‘‘Presumably the woman was able to remove the
garments herself and might have done so if, for example, she was
threatened’’.
39
Other research involving police surgeons suggests a
false reporting rate as low as 3%, with the most experienced police
surgeons giving the lowest estimates.
40
A further source of information that may be of help in this
analysis is from interviews with police officers and rape
complainants themselves. In their 1983 Scottish study of police
treatment of rape, Chambers and Millar found that some decisions
to no-crime were dubious, for example, where there was insufficient
evidence or the complaint was withdrawn.
41
They also found that
‘‘Interviews conducted with police officers indicated that some
officers had fixed assumptions about how women who had been
sexually assaulted ‘‘ought’’ to behave, which, when absent, cast
doubt on the complainant’s veracity’’.
42
More recently, in a study
of women who had reported rape to the police, Temkin found that
some complainants were disbelieved because of their demeanour.
43
She notes: ‘‘[Two complainants] were entirely negative about their
first encounter with the police ... this was mainly because of the
disbelieving attitude of the officers concerned which was apparently
borne of an expectation that genuine rape victims react in certain
stereotypical ways’’.
44
In interviews conducted with police officers
from the Sussex Constabulary, Temkin found that some officers had
‘‘fixed and stereotypical ideas of what makes a genuine rape
victim’’.
45
She interviewed one officer who commented: ‘‘You get a
feel for something and how genuine it is or isn’t by the demeanour
of the victim, by the time it has taken her to report it, whether she
does or doesn’t know the offender ...’’
46
In the context of
38
C.H. Stewart, ‘‘A Retrospective Survey of Alleged Sexual Assault Cases’’ (1981) Police
Surgeon 28, 32.
39
Temkin, note 6 above, p. 5.
40
R. Geis et al., ‘‘Police Surgeons and Rape: A Questionnaire Survey’’ (1978) Police Surgeon 7,
cited in Taylor, note 4 above. Geis questioned police surgeons on how many false complaints
they believed they had dealt with in their careers. Estimates varied from 3%to 31%.
41
G. Chambers and A. Millar, Investigating Sexual Assault (Edinburgh 1983), 38–42.
42
Ibid., 90.
43
J. Temkin, ‘‘Reporting Rape in London: A Qualitative Study’’ (1999) 38 Howard Journal of
Criminal Justice 17, 23 and 27.
44
Ibid., 23.
45
J. Temkin, ‘‘Plus C¸ a Change: Reporting Rape in the 1990s’’ (1997) 37 British Journal of
Criminology 507, 516. Similarly, Parker and Brown quote without question one police officer
who noted in an investigation log: ‘‘As the victim relayed her story to me she offered no
expression of emotion or sense of disgust at what she had allegedly endured. She appeared to
be reeling off a list ... She wanted to shock but what she was saying did not match the way
she was telling it. There is good reason to doubt this allegation’’: note 11 above, p. 251.
Apparently, the officer was unaware that this complainant’s reaction fell within the normal
range of reactions following rape: see for example, A. Burgess and L. Holmstrum, ‘‘Rape
Trauma Syndrome’’ (1974) 131 Am. J. Psychiatry 981.
46
Ibid.
C.L.J. False Allegations of Rape 135
prosecutors the HMCPSI/HMIC report found ‘‘prosecutors often
assess a victim’s behavior against what they view as logical,
common sense and natural responses to a crime’’.
47
In the most
recent Home Office research on police attitudes and recording
practices, Kelly et al. found a culture of disbelief that impacted
upon police recording of rape reports:
The interviews with police officers and complainants’ responses
show that despite the focus on victim care, a culture of
suspicion remains within the police, even among some of those
who are specialists in rape investigations. There is also a
tendency to conflate false allegations with retractions and
withdrawals, as if in all such cases no sexual assault occurred.
This reproduces an investigative culture in which elements that
might permit a designation of a false complaint are emphasised
... at the expense of a careful investigation, in which the
evidence collected is evaluated.
48
Table 1
A Selection of Findings on the Prevalence of False Rape
Allegations
Source False Reporting Rate
Number %
Theilade and Thomsen (1986)
49
1 out of 56 1.5%-
4 out of 39 10%
50
New York Rape Squad (1974)
51
N/A 2%
Hursch and Selkin (1974)
52
10 out of 545 2%
Kelly et al. (2005)
53
67 out of 2,643 3%
54
22%
55
Geis (1978)
56
N/A 3–31%
Smith (1989)
57
17 out of 447 3.8 %
47
See note 7 above, at para. 8.67.
48
See note 14 above, p. 51–52.
49
P. Theilade and J.L. Thomsen, ‘‘False Allegations of Rape’’ (1986) 30 Police Surgeon 17.
50
This range covers the rate of false allegations during the five-year duration of this study. For
the statistics for each year, see ibid. p. 18, Table 1.
51
‘‘Remarks of Lawrence H. Cooke, Appellate Division Justice, Before the Association of the
Bar of the City of New York’’, 16 January 1974 (mimeo) p. 6, cited in S. Brownmiller,
Against Our Will: Men, Women and Rape (Harmondsworth 1975), 366, 444–445.
52
C.J. Hursch and J. Selkin, Rape Prevention Research Project Mimeographed Annual Report of
the Violence Research Unit, Division of Psychiatric Service, Department of Health and
Hospitals, Denver, 1974, cited in S. Katz and M.A. Mazur, Understanding the Rape Victim: A
Synthesis of Research Findings (New York 1979) ch. 13.
53
See note 14 above.
54
Ibid., 50. This figure is derived from the researchers’ assessment of the number of ‘‘possible’’
and ‘‘probable’’ false allegations.
55
Ibid., 38. This figure is derived from the number of rape reports recorded as no-crimes.
56
See note 40 above.
57
See note 15 above, pp. 23–24.
136 The Cambridge Law Journal [2006]
U.S. Department of Justice (1997)
58
N/A 8%
Clark and Lewis (1977)
59
12 out of 116 10.3%
Harris and Grace (1999)
60
53 out of 483 10.9%
61
123 out of 483 25%
62
Lea et al. (2003)
63
42 out of 379 11%
HMCPSI/HMIC (2002)
64
164 out of 1,379 11.8%
McCahill et al. (1979)
65
218 out of 1,198 18.2%
Philadelphia police study (1968)
66
74 out of 370
67
20%
Chambers and Millar (1983)
68
44 out of 196 22.4%
Grace et al. (1992)
69
80 out of 335 24%
Jordan (2004)
70
68 out of 164 41%
71
62 out of 164 38%
72
Kanin (1994)
73
45 out of 109 41%
Gregory and Lees (1996)
74
49 out of 109 45%
Maclean (1979)
75
16 out of 34 47%
76
Stewart (1981)
77
16 out of 18 90%
58
L.A. Greenfield, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault
(US Department of Justice 1997), p. 7.
59
L. Clark and D. Lewis, Rape: The Price of Coercive Sexuality (Toronto 1977), p. 38.
60
Harris and Grace, note 16 above, p. 14.
61
Ibid., 14. This figure was calculated on the basis of the number of false/malicious complaints
that were no-crimed as a proportion of the total number of reports. Of 123 no-crimes, only
43%(53) were no-crimed because they were false/malicious. The overall number of reports
(483), together with the 53 no-crimes, produces a figure of 10.9%. This is a slight
underestimate as this research indicates that a very small proportion of NFAs were described
as involving false/malicious complaints: p. 13. For a similar finding, see Kelly et al., note 14
above, p. 38.
62
This figure is derived from the number of rape reports recorded as no-crimes.
63
See note 29 above, at p. 592. This study does not provide clear statistics on the number of
no-crimes. The figure of 42 out of 379 was calculated by the author of this article on the
basis of the statistics provided by the authors.
64
See note 7 above, p. 35.
65
T.W. McCahill et al.,The Aftermath of Rape (Lexington 1979), p. 115.
66
‘‘Police Discretion and the Judgement that a Crime Has Been Committed—Rape in
Philadelphia’’ (1968) 117 University of Pennsylvania Law Review p. 277, 284.
67
This calculation of 74 false complaints is based upon this study’s reference to
‘‘approximately’’ 370 complaints of rape and attempted rape of which ‘‘approximately one of
every five of these reports was unfounded’’, ibid., pp. 280–281.
68
See note 41 above, p. 10.
69
See note 13.
70
J. Jordan, ‘‘Beyond Belief? Police, Rape and Women’s Credibility’’ (2004) 4 Criminal Justice
29.
71
This figure combines cases that the police designated as false and those in which the
complainant said the allegation was false: ibid., pp. 35–36.
72
This figure refers to allegations viewed by the police as ‘‘possibly true/possibly false’’: ibid.,at
p. 35.
73
E.J. Kanin, ‘‘False Rape Allegations’’ (1994) 23 Archives of Sexual Behavior p. 81.
74
See note 28 above, p. 14.
75
See note p. 34.
76
This figure is made up of 10 (29%) cases that were deemed to be false, and 6 (18%) cases that
were deemed to be ‘‘probably false’’: ibid., pp. 30, 38.
77
See note 38.
C.L.J. False Allegations of Rape 137
B. The United States of America
In the United States, law enforcement agencies make a distinction
between rape reports that are ‘‘founded’’ and ‘‘unfounded’’. The
Federal Bureau of Investigation’s Uniform Crime Reports has
stated that ‘‘unfounding’’ refers to the ‘‘percentage of complaints
determined through investigation to be false’’.
78
The US
Department of Justice, Bureau of Justice Statistics report from 1997
on sex offences and offenders has published data from more than
16,000 local, county and state law enforcement agencies. The
Bureau found that ‘‘[l]aw enforcement agencies indicated that about
8%of forcible rapes reported to them were determined to be
unfounded and were excluded from the count of crimes’’.
79
The
FBI Uniform Crime Reports have shown an unfounding rate
between 1966 and 1994 of 8%–20%for rape and between 2%–4%in
other ‘‘index crimes’’ such as murder or robbery.
80
The extent to
which this figure can be relied upon has to be questioned. Among
such a large number of agencies there is likely to be a significant
variation in recording practice. For example, it was recently
discovered that for nearly two decades the Philadelphia police
department deliberately mislabelled rape complaints and ‘‘dumped
cases’’ by unfounding reports to reduce workload and create
favourable crime statistics.
81
One of the earliest and most detailed studies of police recording
practice in the United States was a study that examined the police
investigation reports for 295 reports of rape and attempted rape
notified to the Philadelphia Police Department in the second half of
1966.
82
In discussions with police and other criminal justice
personnel in the course of this research, the numbers of false
reports were estimated at between 75%and 90%.
83
In contrast, 20%
of rape reports examined in this study were ‘‘unfounded’’. The
author examined the basis of the unfounding decision in 75
additional cases and judged them in light of the common law rules
that existed at that time used to denote the veracity of rape
complaints.
84
The author of this study uncritically accepted these
existing common law rules and police criteria for judging a
78
D.E.H. Russell and R.M. Bolen, The Epidemic of Rape and Child Sexual Abuse in the United
States (London 2000), 49.
79
See note 58 above, pp. 6–7.
80
Russell and Bolen, note 78 above, p. 50.
81
M. Fazlollah et al., ‘‘Timoney to allow Sex-case Oversight’’ The Philadelphia Inquirer 21
March 2000, A9, cited in Russell and Bolen, note 78 above, pp. 61–62.
82
See note 66 above, pp. 280–281.
83
Ibid., 279.
84
For example, the author uncritically cites the decision of the court in Commonwealth v.
Berklowitz 133 Pa. Super. 190, 193, 2 A.2d 516, 517 (1938) where it was argued that lack of a
prompt complaint of rape ‘‘tends to show’’ consent.
138 The Cambridge Law Journal [2006]
complaint as false. This might suggest that the 20%unfounding
rate is too high. By contemporary standards it simply cannot be
accepted that a complaint of rape be deemed false because the
victim did not resist her attacker, or did not complain promptly.
85
Few studies have established clear and reliable criteria for
establishing whether police recording practices give an accurate
indication as to the number of rape reports that are genuinely
false. One of the few studies to attempt to do this was by Kanin
who examined 109 reports to the police over a 9-year period in a
small metropolitan area in the Midwestern United States. Of these
reports, Kanin found that the police had officially declared 45
(41%) to be false. Kanin claimed that the investigation always
included a ‘‘serious offer’’ by the police to polygraph the
complainant and suspect(s) and noted that it was police
department policy that a report could only be declared false if
the complainant herself admitted that the allegation was untrue.
86
While this research has been described as a ‘‘careful study’’,
87
Kanin also warns against generalising from his findings
88
and
there are a number of reasons why its reliability might be
questioned. First, is the uniqueness of the finding that every
unfounded report resulted from a recantation by the
complainant.
89
Kanin does not disclose how many complainants
in his study were in fact, polygraphed, which might have
provided an additional measure of reliability. Second, Kanin
claims that the police acted professionally and ‘‘recantations did
not follow prolonged periods of investigation and interrogation’’.
90
However, while Kanin reports that the police in this study were
very co-operative in sharing information such as case files, it is
not at all apparent how he can be sure from paper records that
complainants were not subjected to pressure to withdraw. Nor
does he consider that the offer of a polygraph test might have
represented an underlying view by officers that rape complaints,
by their nature, were suspect—a view that might influence
subsequent recording practice, as noted in other research. The
third and perhaps most significant problem is that Kanin appears
to assume that police officers abided by departmental policy in
only labelling as false, those cases where the complainant
85
See note 66 above, pp. 286–287, 294, 282,
86
See note 73 above, at 83.
87
R. Thornhill and C.T. Palmer, A Natural History of Rape (London 2000), 160.
88
See note 73 above, at 89.
89
To add to this at the end of his article Kanin briefly refers to another study he conducted of
police records at ‘‘two large Midwestern state universities’’. At these two institutions he found
a false reporting rate of 50%, and again it is claimed that allegations were only labelled as
false where there was a recantation by the complainant: note 73 above, at 90.
90
Ibid., 85.
C.L.J. False Allegations of Rape 139
admitted to fabrication. He does not consider that actual police
practice, as other studies have shown, might have departed from
guidelines.
91
C. Other countries
The lowest estimated number of false allegations of rape can be
found in a study of reports between 1981 and 1985 at the Institute
of Forensic Medicine, University of Copenhagen.
92
The lowest
figure recorded was for the year 1983 where 1.5%of rape
complaints were deemed to be false, with the highest rate being
10%in 1982. Like many other of the studies, the reasons for
determining a report to be false are vague.
93
In their Canadian
study, Clark and Lewis reviewed reports of rape involving victims
over the age of 14 years made to the Metropolitan Toronto Police
Department in 1970. In reviewing the relevant police files, Clark
and Lewis examined the basis upon which reports of rape were
classified as founded or unfounded. They agreed with the police
decision in the 42 cases that were founded. They also identified a
category of 62 cases that the police classed as unfounded, but
where this decision appeared to be unrelated as to whether a rape
had actually occurred. Clark and Lewis discovered that reports
were unfounded where the complainant was viewed as an
unsuitable witness, where there was a lack of solid corroborative
evidence, and where the complainant wished to withdraw her
allegation. They concluded:
In general, it appeared that this classification had been based
either on police perceptions of the victim’s character, or on an
evaluation of how successfully her case could be prosecuted ...
Factual evidence that there had been no rape—which was the
only justifiable basis for such a classification—was absent in
every case.
94
Clark and Lewis calculated that the true unfounding rate was 12
reports out of 116, amounting to 10.3%. These were cases where
91
It is also important to note that if, indeed, officers did abide by this policy then the 41%
could, in fact, be an underestimate given the restrictive definition of false complaints offered
by the police in this study. The reliability of these findings may be somewhat bolstered by the
fact that the police appeared to record the details and circumstances of the fabrications. This
allowed Kanin to explore the ‘‘alibi function’’ of the false allegations in this study: note 73
above, at 85–87.
92
See note 49 above. As a study of doctors, this research, of course, cannot tell us anything
about how criminal justice professionals designate rape reports as false.
93
The authors state: ‘‘This survey only includes cases where the allegations without any doubt
are found to be false, or incidents where the burden of proof for a false allegation had been
so extensive that any possibility of doubt could have been precluded’’: note 49 above, p. 17. It
might be doubted the extent to which doctors can make a definitive determination as to the
veracity of rape complaints given that, unlike the police, they are unlikely to have access to
other evidence that may indicate the truthfulness or otherwise of a complaint.
94
See note 59 above, pp. 37.
140 The Cambridge Law Journal [2006]
Clark and Lewis were of the view that there was evidence that a
rape had not been committed. Of these 12 cases, it was noted that
five were either reported by someone other than the complainant,
and in two cases women reported under pressure from others.
95
The
reporting of false allegations by people other than the complainant
is an observation reported in other research.
96
The most up-to-date study of police recording practice in rape
cases outside of England is an analysis of the New Zealand police
by Jan Jordan. Crucially, this research examines how police officers
determined a complaint to be false.
97
Jordan examined 164 reports
of rape and sexual assault, which included analysis of police files
which allowed her to examine the basis upon which officers
recorded reports of rape.
98
Jordan found that 38%of cases were
deemed by police to be ‘‘possibly true’’ or ‘‘possibly false’’, 33%
were deemed as false and 8%were cases where the complainant
said the allegation was false. Only 21%of cases, based on the file
analysis, were viewed as genuine. Thus 41%of cases were deemed
false and a further 33%could not be positively categorised as either
true or false. In her analysis of the reasons for why so many cases
were deemed false, Jordan found a number of factors were
prominent. Delays in reporting were linked to ‘‘credibility
concerns’’, with ‘‘86%of complainants who had delayed reporting
being viewed suspiciously’’.
99
Other characteristics which were
found in cases that were deemed false, included situations where
the complainant was ‘‘intellectually impaired’’ or ‘‘psychologically
disturbed’’, where there was concealment of information or lying,
previous sexual victimisation, intoxication, complaint withdrawal or
where officers perceived the complainant as ‘‘ ‘sluttish’ or
promiscuous’’.
100
Like earlier studies that have analysed police
recording practice, Jordan concludes:
While false complaints do occur, approximately three-quarters
of the incidents concluded by the police to be false appeared to
have been judged to some extent at least on the basis of
stereotypes regarding the complainant’s behavior, attitude,
demeanour or possible motive. Suspicious file comments were
made by the detectives regarding a woman who laughed while
being interviewed, others who were seen as ‘attention seeking,’
95
Ibid., 38. On this see also: M.M. Aiken, ‘‘False Allegation: A Concept in the Context of
Rape’’ (1993) 31 Journal of Psychosocial Nursing 15, 16, and G. Adshead, ‘‘Psychological
Trauma and its Influence on Genuine and False Complaints of Sexual Assault’’ (1996) 36
Med. Sci. Law 94, 98.
96
See e.g. Jordan, below note 70, pp. 49–50.
97
The last study to examine police practice in this way was published in 1983: above note 41.
98
See note 70 above, p. 34.
99
See note 70 above, p. 37.
100
Ibid., at pp. 37–38, 49.
C.L.J. False Allegations of Rape 141
and some who were said to be ‘crying rape’ for revenge or
guilt motives.
101
Two conclusions can be drawn from this review of literature on the
prevalence of false rape allegations. First, many of the studies of
false allegations have adopted unreliable or untested research
methodologies and, so we cannot discern with any degree of
certainty the actual rate of false allegations. A key component in
judging the reliability of research in this area relates to the criteria
used to judge an allegation to be false. Some studies use entirely
unreliable criteria, while others provide only limited information on
how rates are measured. The second conclusion that can be drawn
from the research is that the police continue to misapply the no-
crime or unfounding criteria and in so doing it would appear that
some officers have fixed views and expectations about how genuine
rape victims should react to their victimisation. The qualitative
research also suggests that some officers continue to exhibit an
unjustified scepticism of rape complainants, while others interpret
such things as lack of evidence or complaint withdrawal as ‘‘proof ’’
of a false allegation.
102
Such findings suggest that there are
inadequacies in police awareness of the dynamics and impact of
sexual victimisation and this further reinforces the importance of
training and education. However, the exact extent to which police
officers incorrectly label allegations as false is difficult to discern.
Bearing in mind these findings, this article proceeds by examining
how this research has been used within the scholarly literature.
III. THE ISSUE OF FALSE ALLEGATIONS WITHIN THE
SCHOLARLY LITERATURE
Historically, legal scholarship has produced two broad approaches
to the issue of false rape allegations. The first approach claims that
women are very likely to make false complaints of rape, and
provides various medical or psychological explanations for this
behavior.
103
These works have consistently failed to challenge the
assumption that significant numbers of women falsely allege rape.
104
Since the mid-1970s, a second approach has emerged. It can be
found in a large number of legal articles and books examining the
101
Ibid., at pp. 48.
102
See, e.g.,ibid., 49; Harris and Grace, note 16 above, p. 14.
103
See e.g. ‘‘Corroborating Charges of Rape’’ (1967) 67 Columbia Law Review 1137, 1138
(‘‘Surely the simplest, and perhaps the most important, reason not to permit conviction for
rape on the uncorroborated word of the prosecutrix is that the word is very often false’’.);
‘‘Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the
Consent Standard’’ (1952) 62 Yale Law Journal 55.
104
For discussion see the sources discussed in Taylor, note above 4, 74–81; N. Naffine,
‘‘Windows on the Legal Mind: the Evocation of Rape in Legal Writings’’ (1992) 18
Melbourne University Law Review 741.
142 The Cambridge Law Journal [2006]
law of rape and its enforcement taking the view that the number of
false allegations is low, or at least no higher than the rate for other
serious offences.
105
Indeed, such a view has been said to form an
‘‘overwhelming consensus’’.
106
Within this body of work probably
the single most commonly cited false reporting statistic is taken
from Susan Brownmiller’s book Against Our Will: Men, Women and
Rape. Here, Brownmiller referred to a talk given by Judge
Lawrence H. Cooke before the Association of the Bar of the City
of New York, thus:
When New York City created a special Rape Analysis Squad
commanded by police- women, the female police officers found
that only 2 percent of all rape complaints were false—about
the same false-report rate that is usual for other kinds of
felonies.
107
In a recently published article, Greer recounts his attempts at
tracking down the origins of this statistic and concludes that there
is no evidence that it was the product of any systematic research.
108
Yet within the scholarly literature and elsewhere, repeated reference
is made to ‘‘research’’ or ‘‘studies’’ in the context of the New York
figure even though the original source for this figure cannot be
identified.
109
In developing legal policy, one might question the
wisdom of relying upon a statistic that has never been published or
subject to peer review, that is several decades old, and in the
context of its use in this country, is derived from a foreign
jurisdiction. Of course, there are a small number of studies that
lend support to the 2%claim, though they are rarely cited, and
with the exception of the most recent research in this area, we
know only a limited amount of their methodology.
The ‘‘overwhelming consensus’’ as to the frequency of false
allegations can also be found within the British literature. Indeed,
the 2%figure and its associated claim that false rape complaints are
no more common than for other offences, has become so engrained
that claims regarding the rarity of false complaints are sometimes
made without any reference to supporting evidence. In an analysis
of the Criminal Law Revision Committee’s 1984 report on sexual
105
See e.g. S. Lees, Carnal Knowledge: Rape on Trial (London 1997), p. xix. See also Lees’ new
edition of Carnal Knowledge (London 2002), p. 124.
106
D.L. Rhode, Speaking for Sex: The Denial of Gender Inequality (Cambridge, Mass. 1997),
p.125 (referring to the claim that only 2%of rape reports are deemed to be false).
107
See note above 51, p. 366.
108
E. Greer, ‘‘The Truth Behind Legal Dominance Feminism’s ‘Two Percent False Rape Claim’
Figure’’ (2000) 33 Loyola of Los Angeles Law Review 947, 949, 954–8.
109
Greer attempted to find out the original source of the 2%figure by contacting those who
were involved in the preparation of Judge Cooke’s original speech upon which Brownmiller
relied. However, he was unable to establish the source: ‘‘Whether the original source was a
press release, a more formal report, or simply an oral statement to a reporter, remains lost in
antiquity’’: Ibid., at p. 958.
C.L.J. False Allegations of Rape 143
offences, Celia Wells criticised the Committee for appearing to
perpetuate the ‘‘myth ... that there is more likelihood that women
will lie about rape than that anyone else will falsely report other
crimes’’. (emphasis in original)
110
Again, without reference to
supporting evidence Aileen McColgan goes further, stating:
‘‘[w]omen do, very occasionally, make false allegations of rape’’,
and that the numbers of false allegations are ‘‘infinitesimal’’.
111
There have also been attempts to bolster the credibility of the New
York 2%figure within the domestic literature. Adler explicitly cites
the New York statistic by claiming that it is the ‘‘only
methodologically sound’’ study of false allegations.
112
What is
interesting here is Adler’s use of sources. In support of her claim
she cites the work of Polly Pattullo. It is worth quoting Adler’s
source in full:
Those who believe that rape victims lie might look to the
report of the New York City Rape Analysis Squad which
found that only two per cent of rape charges reported were
false and that these figures were not out of step with false
charges made for other serious crimes.
113
Perhaps the most obvious point to make about this quotation is
that it makes no reference to the New York statistic being the
‘‘only methodologically sound’’ study of false allegations. In
addition, Pattullo does not provide any source for her information,
but what she states is entirely consistent with the contents of
Brownmiller’s Against Our Will, which likewise does not include
any reference to the New York research methodology. Adler’s
reference to the methodology of the New York study has also been
cited by other scholars who appear neither to have looked at the
work of Pattullo, nor Brownmiller, as her most likely source.
114
Within the US literature, Greer has noted that similar problems
abound with the New York statistic being cited by many scholars
with little regard for its reliability.
115
In addition, he has found that
while some scholarly articles cite multiple sources of authority for
the 2%figure, on closer analysis, all those sources appear to be
based upon the New York statistic from Against Our Will.
116
The New York statistic has also been cited in a curious context.
In research commissioned by the Sentencing Advisory Panel (SAP),
110
C. Wells, ‘‘Law Reform, Rape and Ideology’’ (1985) 12 Journal of Law and Society 63, 67.
111
A. McColgan, The Case for Taking the Date Out of Rape (London 1996), p. 103.
112
Z. Adler, Rape on Trial (London 1987), p. 25.
113
P. Pattullo, Judging Women: A Study of Attitudes that Rule our Legal System (London 1983),
p. 18.
114
See, e.g. Naffine, note above 104, p. 752.
115
See Greer, note above 108, pp. 954–960.
116
Ibid. pp. 954–955 (discussing: M. Torrey, ‘‘When Will We Be Believed? Rape Myths and the
Idea of a Fair Trial in Rape Prosecutions’’ (1991) 24 U.C. Davis L. Rev. 1013, 1028).
144 The Cambridge Law Journal [2006]
which examined people’s attitudes to marital and relationship rape,
the issue of false allegations arose in the survey participant
discussion of so-called ‘‘date rape’’. The authors of the study
responded to this by arguing that ‘‘the idea that a high percentage
of date rape cases are actually false allegations is undermined by
two pieces of empirical work’’.
117
One of their references is to the
New York statistic, or rather Patullo’s description cited in Adler.
Apart from the various reasons already given as to why this study
should be questioned as reliable, there is another point to be made
regarding its use in this context. There is no evidence that the New
York statistic arose from a study of date rape. The SAP report also
cites research published on the prevalence of date rape among US
college students. However, this was not research examining false
rape allegations and it is therefore difficult to see how it can
support any suggestion that the rate of false complaints is low.
118
In the literature review for the HMCPSI/HMIC report on the
investigation and prosecution of rape, Professor Liz Kelly also
makes reference to claims that the false reporting rate for rape is
no higher than for other offences and also speculates that ‘‘they are
probably considerably lower than for some crimes, for example,
thefts that are reported to support an insurance claim’’.
119
She also
uses the work of Naffine, which is itself a fourth-hand account of
Brownmiller’s New York City Rape Analysis Squad claim that the
presence of a female officer during interviews with rape
complainants increased the number of cases in which the allegation
was regarded as founded.
120
Kelly appears to suggest that the key
difference in this context is the gender of the police officer.
121
There
is certainly evidence that some male officers may be particularly
sceptical of rape complaints, but the reference to gender may be an
over-simplification. For example, it may be that the 2%figure
reflects the fact that the officers on the squad had been properly
trained.
122
Indeed, Harry O’Reilly, who was a supervising sergeant
117
A. Clarke et al.,Attitudes to Date Rape and Relationship Rape: A Qualitative Study (2002),
54.
118
M.P. Koss, ‘‘Hidden Rape: Sexual Aggression and Victimisation in a National Sample in
Higher Education’’, in A.W. Burgess, Rape and Sexual Assault II (London 1988); M.P. Koss,
‘‘Defending Date Rape’’ (1992) 7 Journal of Interpersonal Violence 122.
119
L. Kelly, Routes to (in)justice: a Research Review on the Reporting, Investigation and
Prosecution of Rape Cases (2001), 22.
120
Ibid., 23. This claim is a fourth-hand account of the original source as Naffine took it from
Adler, who took it from Pattullo, who took it from Brownmiller, who took it from a speech
given by Judge Lawrence H. Cooke to the New York Bar Association.
121
Kelly notes that: ‘‘This tendency [to focus on false complaints] appears to be especially
strong among (male) investigative officers’’: note above 119, p. 23.
122
For discussion of the training of officers as part of this squad see: ‘‘Harry O’Reilly, Ex-
policeman’’, in S. Levine and J. Koenig (eds.), Why Men Rape: Interviews with Convicted
Rapists (London 1980), 162–163. Given that we know nothing of how this figure was
compiled it could also be that officers were over-reluctant to label complaints as unfounded,
C.L.J. False Allegations of Rape 145
on the New York City Rape Analysis Squad, when interviewed
about his experiences, stated:
Our experience in dealing with sex crimes investigation,
however, has shown us that when given the option to choose,
a woman rape victim is as likely to ask for a male officer as
she is a female officer. And it seems that the criteria are the
sensitivity, the compassion, and the empathy and the
understanding and professionalism of the officer rather than
the sex of the officer.
123
In her recent study of the New Zealand’s police, Jordan found
that: ‘‘Maleness per se did not appear to determine the quality of
an officer’s response to sexual assault victims ... while some
women found it traumatic being interviewed by a man, others felt
this was not so nearly as important as the officer’s attitude’’.
124
This is not to say that female officers are unimportant. The need
for female officers is of clear importance, partly on the basis of
victim-choice, but also because most rape complainants are female.
However, whether it is male officers per se or male and female
officers who do not have the attributes described by O’Reilly, who
are more likely to dismiss rape complaints as false or treat victims
unsympathetically, cannot be answered by reference to
Brownmiller.
Finally, it is worth considering one further issue. An integral
part of the 2%figure is the claim that the false reporting rate for
rape is no higher than for other offences. Yet rarely do scholars
actually cite studies of false complaints for offences other than
rape.
125
The findings from studies of false reporting in non-sexual
assault cases would appear to be inconclusive. In a direct
comparison with rape complaints and those involving non-sexual
assaults, Theilade and Thomsen found that the highest rate of false
complaints was for non-sexual assault.
126
By contrast, Gregory and
Lees cite a no-crime rate for non-sexual assaults of 3%, while the
no-criming rate for rape in their study was 45%.
127
Chambers and
Millar cite research suggesting a no-crime rate for general crime
reports of between 1.6%and 6%. They also cite one study of 3000
though this would be at odds with much of the evidence on police recording practice
discussed earlier.
123
Ibid., 161.
124
J. Jordan, ‘‘Worlds Apart? Women, Rape and the Police Reporting Process’’ (2001) 41 British
Journal of Criminology 679, 692.
125
For a recent example see Lea, note above 29, p. 597.
126
Over a five-year period they found the following rate of false reporting (with the percentage
rate of false complaints in brackets). In cases of rape: 1981: 3 (7%); 1982: 4 (10%); 1983 1
(1.5%); 1984 3 (7.5%); 1985 3 (5%). In cases involving ‘‘victims of violence’’: 1981: 0 (0%);
1982 0 (0%); 1983 0 (0%); 1984: 3 (8%); 1985: 3 (19%): note above 49, p. 18.
127
See note above 28, pp. 4, 14.
146 The Cambridge Law Journal [2006]
crime reports that found a no-crime rate of 17%for non-sexual
assaults and 11%for sexual assaults.
128
IV. FALSE ALLEGATIONS AND THE PARLIAMENTARY PROCESS
In the last three decades, the problem of rape and sexual assault
has been repeatedly debated in Parliament. The issue of false
allegations has often arisen as part of these debates and continues
to influence the agenda for legislative change. In 1976, during the
passage of the Sexual Offences (Amendment) Bill, an amendment
was debated which would have abolished the marital rape
exemption. The issue of false allegations was prominent during the
debate of this proposal and provided the basis for repeated claims
that the immunity should remain:
When that stage of hatred is reached [during divorce], the
more hurtful the allegation the more likely it is to be made ...
There does not have to be any evidence of injury. All that a
woman has to do is to disarrange her clothes ...
In marriage, the charge [of rape] can be made with ease when
the couple are living under the same roof.
... one must also have regard to the ease with which the
allegation can be made in marriage and the greater ease of a
false allegation being made ... there are many reasons why a
woman could be vengeful towards her husband ... Therefore,
one has to be very careful.
129
During the same debate it was also argued that a false allegation
might be used by a wife to get a better settlement on divorce: ‘‘If
she could secure that on a baseless allegation, or one without
substance, she would be in a position of very great strength, and
the mere threat of the publicity might be sufficient to cow the
respondent to a petition to drop proceedings and agree to divorce’’.
And further: ‘‘What about the wife who is in a bad psychiatric
condition, finds it easy to work herself up into an intense emotional
belief and alleges that she has been sexually assaulted by her
husband? ... For all these reasons it would be unfair and
dangerous to allow rape to come into the question’’.
130
In more recent times the issue of false allegations has arisen
over debates concerning suspect and defendant rights in cases
involving sexual offences. During the passage of the Sexual Offences
Bill in 2003, an amendment, later to be defeated, was introduced in
the House of Lords that would have granted limited anonymity to
suspects and defendants in cases involving sexual offences. The
128
See note above 41, p. 38.
129
Hansard (HC), vol 911, cols 1961, 1964, 1965–1966, 21 May 1976.
130
Ibid. col 1968.
C.L.J. False Allegations of Rape 147
support for this amendment was primarily based upon the impact
of allegations of sex offences on the life of suspects, particularly
those who are never subsequently charged.
131
Unlike debates in
previous decades, there was relatively little reference made to the
issue of false allegations. However, one example of where the issue
arose was during a speech by Lord Thomas of Gresford when he
said: ‘‘As we said in earlier debates on these provisions, the
complainant who may well be lying, as happens in sex cases, is
granted anonymity throughout, no matter the result of the case’’.
132
The issue of anonymity was also raised on at least two occasions
during 2004. First, by the submission of a petition to the House of
Commons by Labour MP Claire Curtis-Thomas calling for teachers
to be given anonymity when accused of sexual offences against
children. This petition stated: ‘‘The majority of the allegations are
false, unfounded, exaggerated or malicious’’.
133
Second, the issue of
false allegations arose during a Parliamentary debate, when the
Conservatives argued that teachers should be granted anonymity
when facing allegations of abuse from pupils.
134
The issue of false allegations has also featured in two recent
Home Affairs Select Committee reports, one that examined so-
called ‘‘past’’ allegations of abuse in children’s homes,
135
and a
second report that examined the provisions of the Sexual Offences
Bill.
136
It is worth examining the assumptions on the rate of false
allegations that underlie these Committee reports. In the case of the
Committee’s report on past allegations of abuse, it repeatedly
emphasised the risk of false allegations and identified a range of
factors including the payment of compensation and the nature of
historic allegations that magnify such a risk. The following passage
is typical of the tone throughout the report: ‘‘In large-scale police
operations into past abuse, there is arguably ample opportunity for
131
Lord Thomas of Gresford noted that ‘‘publicity [in cases of sex offences] results in
considerable pain and anguish to a suspect. It can result in the ruination of his reputation
and the destruction of his family life’’: Hansard (HL), vol.654, col. 1914, 18 November 2003.
See also: G Langdon-Down, ‘‘Name and Shame?’’ Law Society Gazette, 23 October 2003, 24.
132
Hansard (HL), vol.654, cols. 1914–1915, 18 November 2003. See also col. 1917.
133
Hansard (HC), vol.422, col. 376, 9 June 2004. See also R. Scorer, ‘‘Giving Teachers the Right
to Sue’’ New Law Journal 11 June 2004, 880.
134
During the recent debate on this subject, the Conservative Education spokesman Tim Collins
MP argued that such allegations could have a devastating impact upon the lives of teachers
who are never convicted of an offence. He also stated: ‘‘... teachers are very understandably
of the view that they are treated now as though they are guilty until proven innocent, when
it should be the reverse. The pendulum has swung too far. No doubt in the past children’s
complaints were not given sufficient weight. Today, it is the right of teachers to basic justice,
protection from false or malicious allegations and the presumption of innocence that needs to
be given more weight’’. Hansard (HC), vol.428, col. 1404, 13 December 2004.
135
House of Commons Home Affairs Committee, The Conduct of Investigations into Past Cases
of Abuse in Children’s Homes, Fourth Report of Session 2001–02 (London 2002).
136
House of Commons Home Affairs Committee, Sexual Offences Bill, Fifth Report of Session
2002–03 (London 2003).
148 The Cambridge Law Journal [2006]
individuals to bring forward false or exaggerated allegations’’.
137
Perhaps surprisingly, given the prominence it gave to the issue, the
Committee only dedicated a single paragraph on the actual
prevalence of false allegations. It cited several views ‘‘on the scale
of the problem’’. They cited a ‘‘guess’’ by an investigative journalist
that: ‘‘50 or more of the 120 or so former care workers convicted
of sexual abuse had been wrongly convicted’’, and a defence
solicitor who ‘‘estimated’’ that over 100 former care workers had
been wrongly convicted. Another claim was that ‘‘in excess of 80 or
90 per cent of the 581 or so suspects trawled by South Wales Police
were completely innocent’’ and finally, the Committee cited a claim
by Claire Curtis-Thomas MP that she was aware of 20 cases where
there had been ‘‘significant abuses of the criminal justice system’’.
138
What is interesting about these claims, other than that some are
based on nothing more than guess work, is that they are measuring
different things, from ‘‘wrongful’’ convictions, suspects questioned
by the police, to ‘‘significant abuses’’. Of course, trying to
determine the extent of false allegations is no easy task. However,
such difficulties should be explicitly recognised, and in this report
generally they were not. Instead, the Committee made not only the
assumption that there was a high risk of false allegations, but also
that there had, in fact, been a ‘‘significant number of miscarriages
of justice’’.
139
The Committee supported its claim that there were a ‘‘significant
number of miscarriages of justice’’ by stating: ‘‘The fact that the
Crown Prosecution Service rejects an astonishing 79 per cent of the
care home abuse cases put to it tends to support this view’’.
140
Earlier in its report, the Committee claimed that this figure is ‘‘even
more astounding when compared to the general discontinuance
rate, which is 13 per cent of all cases referred to the CPS’’.
141
However, the Committee used this discontinuance rate to support
two very different and potentially contradictory positions. While
claiming the discontinuance rate supported its views on miscarriages
of justice, earlier in its report the Committee stated that the high
discontinuance rate ‘‘graphically illustrates the view that police
trawls are not generating evidence of sufficient quality in these cases
137
See note above 135, para. 85.
138
Ibid., para. 15. These claims should also be judged in light of the fact that of those cases
where there have been convictions ‘‘the vast number’’ were secured by ‘‘guilty pleas’’: ibid.,
para. 63.
139
Ibid., para. 135. On this issue see also the Government’s reply to the Select Committee
report: The Government’s Reply to the Fourth Report from the Home Affairs Committee
Session 2001–2002 HC 836 (Cm. 5799, 2003), paras. 9–13 (noting the lack of ‘‘objective fact’’
to support the Committee’s claims regarding false allegations and miscarriages of justice).
140
See note above 135, para. 135.
141
Ibid., paras. 135 and 63.
C.L.J. False Allegations of Rape 149
to satisfy the burden of proof’’.
142
An allegation lacking evidence
sufficient to prosecute is of course, very different from that
allegation being false. In addition, an alternative interpretation of
the discontinuation statistics can be given. The high rate of
discontinuance may simply be a product of the fact that these are
allegations that are often reported many years after the alleged
offences occurred. In such cases there may be little, if any,
corroborating evidence, a point recognised by the Committee, but
only as a basis for arguing how difficult it is for those wrongly
convicted to have their convictions overturned.
143
We might also
note that to compare the discontinuance rate in past cases with the
13%rate for all cases referred to the CPS is unlikely to be
comparing like-with-like. In cases of rape the discontinuance rate is
significantly higher than 13%. Harris and Grace found a rate of
29%.
144
Lea et al. found that the CPS classified 14%of cases as
involving ‘‘no further action’’ (NFA) and another 14%were NFA-
ed by the CPS or the police.
145
This lower discontinuance rate may
be wholly or partly explained by the fact that the vast majority of
rape allegations in these studies are not historic and may therefore
have at least some corroborative evidence that make discontinuance
less likely.
146
V. FUTURE DIRECTIONS OF POLICY AND RESEARCH
A. Implications for rape law enforcement and the use of
‘‘Statement Validity Analysis’’
The fear of false rape allegations has informed a number of
proposals for change to the criminal justice system. However,
basing policy recommendations on unreliable data may pose a risk
because this data may result in unnecessary or misguided reforms
to the criminal justice process. The importance of critical analysis
of research findings is emphasised by Russell and Bolen, who in the
context of research on the incidence and prevalence of sexual
assault, argue:
A lack of internal criticism is contrary to scientific principles
... defective research deserves to be characterized as such
because it leads to inappropriate policy decisions. Sound
research that nevertheless suffers from one or more serious
142
Ibid., para. 63.
143
Ibid., paras. 130–131.
144
Seenote above 16, p. 26.
145
See note above 29, p. 592.
146
The recent Home Office study by Kelly et al. indicates that most allegations of rapes are
reported to the police within 24 hours, thus increasing the likelihood that corroborating
evidence such as forensic evidence will be found: Kelly et al., note 14 above, p. 43. Lea et al.
found 66%of cases ‘‘were reported within a day of the alleged crime’’: note 29 above, p. 590.
150 The Cambridge Law Journal [2006]
flaws should be criticized for these flaws, and the consequences
of these flaws should be evaluated and pointed out.
147
The problem of ‘‘inappropriate policy decisions’’ is no more
apparent than in the context of policy responses to false rape
allegations. For example, underlying the argument for anonymity
for defendants and suspects in cases involving sex offences are
assumptions pertaining to the issue of false complaints. In his
review of arguments for and against anonymity for the accused in
cases of rape, Samuels states: ‘‘The proportion of acquittals in rape
cases is very high, something in the order of 90 per cent, so ex
hypothesi most of the defendants are innocent, or at least not
proved to be guilty. Unfortunately the incidence of false accusation
(sic) by the alleged [victim] is uncomfortably high’’.
148
Similarly, in
its report on the Sexual Offences Bill, the Home Affairs Select
Committee called for anonymity to be given to the accused in cases
involving sex offences,
149
citing evidence given by the Criminal Bar
Association that ‘‘anonymity for the complainant increases the risk
of false allegations ...’’
150
In its report on past allegations of child
abuse the Committee also recommended that anonymity be
extended to defendants in such cases: ‘‘[g]iven the prejudicial nature
of allegations of sexual offences, publicity can do enormous damage
to persons who are falsely accused’’.
151
In response to these kinds
of claims, Temkin notes:
Implicit in these complaints is an assumption that allegations
of rape are prone to be false, so that men require special
protection from them. The absence of any evidence for this
assumption and the increasing recognition that the guilty are
all too often acquitted in rape cases may partially explain why
successive governments have stood commendably firm against
this backlash.
152
Suspect anonymity has not been the only area where the issue of
false allegations has guided calls for changes to the way in which
sex offences are dealt with by the criminal justice system. This
section proceeds by examining one specific technique that has
recently been advocated as a means of enabling the police to more
accurately identify false, as well as truthful allegations of rape.
Parker and Brown have argued for the use of ‘‘Statement Validity
Analysis’’ (SVA) as an ‘‘objective’’ means of assessing the veracity
147
Russell and Bolen, note 78 above, p. 15.
148
A. Samuels, ‘‘Anonymity for the Rape Accused’’ (2003) 67 Journal of Criminal Law 492
149
See note 136 above, para. 76.
150
Ibid., para. 74.
151
See note 135 above, paras. 98–99.
152
See note 6 above, p. 308. See also: J. Temkin, ‘‘Putting the Clock back on Rape’’ New Law
Journal November 5, 1993, p. 1575.
C.L.J. False Allegations of Rape 151
of rape complaints. SVA involves assessing a complainant’s
allegation of rape according to a set of criteria. These criteria are
gleaned from a base of actual false and truthful rape allegations. In
conducting this research Parker and Brown used a small number of
rape complaints. Parker and Brown analysed 30 crimed rape
reports and 43 that had been no-crimed. Given the necessity that
these cases be accurately recorded, a report would only be judged
as false if it fell within ‘‘stringent’’ criteria, including instances
where the complainant admitted to fabrication or where ‘‘medical,
forensic or witness evidence substantially contradict[ed] the
account’’.
153
The ‘‘psychological and practical characteristics’’ of
these allegations are then identified and a comparison is made with
the complaint under investigation, allowing officers to assess its
credibility. Parker and Brown note: ‘‘SVA seeks to identify the
extreme within an account-finding a statement credible or non-
credible based on its content’’.
154
In judging the truthfulness of rape
complaints it was found that ‘‘SVA performed consistently better
than any individual police officer or the group as a whole’’.
155
There are however, a number of observations that should be made
regarding this study.
It is the case that some doubts must be expressed regarding the
reliability of some of the characteristics they identify. For example,
on the basis of a complainant’s calm demeanour the authors of this
research, presumably unintentionally, cite an example of what they
claim is a false complaint that may have been genuine.
156
Parker
and Brown also contrast this with a genuine case ‘‘in which the
victim had considerable trouble maintaining her composure
throughout her description of events’’.
157
They also note that some
of their findings are inconsistent with other research. They found
that in their study genuine allegations of rape tended to involve ‘‘a
wider range of sexual acts’’, than false allegations. Parker and
Brown note that other studies have found the exact opposite.
158
Indeed, there are several criteria identified by Parker and Brown
that do not appear to form a reliable basis upon which to judge a
complaint as false. These include delays in reporting, the absence of
physical injury, as well as victim demeanour.
159
It has been
repeatedly shown that delays in reporting are not uncommon
responses by victims; that many rape victims do not suffer physical
153
See note 11 above, pp. 241, 243.
154
Ibid., pp. 241–242, 250.
155
Ibid., p. 249.
156
For discussion see note 11 above, p. 251 and note 45 above.
157
Ibid., p. 251.
158
See note 11 above, p. 252.
159
Ibid., p. 259.
152 The Cambridge Law Journal [2006]
injury and that not all rape victims react to their experiences in an
expressive or emotional manner.
160
Even if such characteristics are
disproportionately found in false allegations, there is a significant
danger that SVA may simply legitimise the unfounded assumptions
of some police officers that such characteristics are inconsistent with
genuine allegations.
Another problem lies in the cases that comprise the sample of
false allegations in this study: the credibility characteristics
identified are a product of a particular group of false complaints,
which may not be representative of such cases generally. For
example, Parker and Brown note that: ‘‘69%of false allegers had a
psychiatric history compared with 13%of the genuine rape
victims’’. The potential problem is whether this figure of 69%is
representative of false allegers generally.
161
If not, then this
immediately creates a problem that SVA may be identifying
characteristics that are not representative of false complaints
generally. Of course, there may be great difficulties in identifying a
representative sample of false allegers, but all the same, the absence
of such a sample may raise doubts regarding the reliability of SVA.
The proposed use of SVA appears to rest upon assumptions
regarding the incidence of false complaints that do not withstand
critical scrutiny. For example, the SVA research has been the
subject of a two-page story in The Times newspaper.
162
This story
cites the 25%no-crime rate found in a 1999 Home Office survey
discussed earlier.
163
Parker and Brown also cite this study and
accurately note ‘‘just under half of these cases were thought to have
been false or malicious allegations’’.
164
In other words, in a
significant number of cases, the no-crime criteria are being applied
to allegations that are not deemed false or malicious. Yet as
becomes apparent, the unreliability of the no-crime criteria for
judging a complaint to be false, does not impact on what would
appear to be an underlying assumption that crime reports involving
sexual offences are particularly problematic. They cite a Home
Office study that found a no-crime rate of 45%and while noting a
drop in this rate as reported by Smith, they did not note that the
rate measured by Smith was 3.8%.
165
Parker and Brown also cite
160
For some of the studies in this area, see: Rumney and Taylor, note 36 above, pp. 489–490.
161
See note 11 above, p. 252. People with mental health problems do appear to be a significant
feature of no-crimes in cases of rape, but some studies suggest a rate much lower than the
69%rate found by Parker and Brown. The research by Harris and Grace found that 22 no-
crimes out of 123 involved complainants with learning disabilities or mental health problems:
below notes 181 and accompanying text. In addition, the reasons behind the use of no-
criming in such cases remain unclear.
162
See note 9 above.
163
See note 62 above and accompanying text.
164
See note 11 above, pp. 238–9.
165
See note 57 above and accompanying text.
C.L.J. False Allegations of Rape 153
false allegation statistics of between 10%and 41%.
166
They make no
attempt to judge the reliability of these estimates, and indeed, the
41%figure is taken from the small-scale study by Kanin, that must
be approached with caution, for the reasons discussed earlier.
167
Parker and Brown’s use of the 10%figure is part of a study of false
complaints by the Institute of Medicine in Copenhagen.
168
As noted
earlier, the 10%figure is the highest given during the five year
period covered by this study, the lowest number, not mentioned by
Parker and Brown, was 1.5%.
169
The highest overall figure in this
study, 19%, was for non-sexual assaults.
170
Despite the unreliability
of these higher estimates, Parker and Brown clearly see sexual
offence reporting as inherently problematic: ‘‘Veracity of the
victim’s accounts of events is thus critical in the investigation of a
rape allegation’’.
171
One could of course make the point that
‘‘veracity’’ of the victim’s account is central to any criminal
investigation. However, it is unclear why rape cases specifically
require techniques to measure veracity.
One of the other issues that arises in discussion of SVA is the
extent to which this can be viewed as an ‘‘objective’’ measure of
false complaints. In evidence before the Home Affairs Select
Committee, Detective Inspector Andrew Parker, co-author of the
SVA study under discussion, stated: ‘‘I think the value of SVA is
that it provides a structure to that evaluation and instead of relying
on subjective indicators of credibility, which we all use, it is an
objective basis on which to give direction to inquiries’’.
172
The
claim of ‘‘objectivity’’ is an attractive one as it suggests a means by
which police officers’ subjective (and inaccurate) judgements can be
mitigated. However, the problem with SVA is that it is based in
part on criteria that are open to multiple interpretations and while
in combination, the criteria may provide some assistance, as the
proponents of this technique recognise, it is not intended to be used
as a replacement for other investigative tools.
173
Thus a high degree
of subjectivity inevitably remains. A sounder approach might be to
emphasise the importance of the ongoing education of police
officers so that they better understand such things as victim
reactions to rape, victim perceptions of their treatment by officers
and false allegations. This is particularly important, because even
166
Ibid., at p. 238.
167
See notes 86–91 above, and accompanying text.
168
See note 49 above, p. 142.
169
Ibid., at p. 18.
170
See note 126 above.
171
See note 11 above, p. 239.
172
See note 135 above, para. 48.
173
See note 11 above, pp. 241, 254.
154 The Cambridge Law Journal [2006]
with a reliable system of SVA, problems such as officers
misinterpreting victim reactions will undoubtedly remain.
B. Some Suggestions for a Future Research Agenda
Given its inadequacies, much of the current research literature
cannot be used to determine the rate of false rape allegations.
There is a need for further, methodologically sound empirical
research, as noted by the HMCPSI/HMIC report.
174
Of central
importance in this respect is research that examines how and why
police officers determine that particular allegations are false.
175
The
recent study by Kelly et al. has, to some extent, alleviated this
evidence gap, though there continue to be areas where we know
relatively little. For example, an examination of the role played by
forensic medical examiners and prosecutors in the classification of
rape reports at different points in the criminal justice process is also
of importance.
176
This would enable us to examine the basis upon
which reports are classified as no-crimes or where they are
discontinued, the factors taken into account in making such
decisions, and the assumptions or beliefs that underlie the decision-
making process.
It seems likely however, that even with qualitative research
methods there are going to be inherent limitations. In her recent
research, Jan Jordan acknowledged the limitations of her study,
which was based on case file analysis. In discussing police
scepticism of rape complainants, she stated: ‘‘It is virtually
impossible to tell from the file evidence available whether or not
such scepticism is well founded in reality or simply emanates from
a police occupational trait of general suspiciousness’’.
177
Indeed,
evidence from the United States suggests that information in rape
case files held by the police may not always be accurate.
178
Ultimately, it would appear that the only way researchers could
determine whether scepticism in individual cases was well founded
would be to accompany police officers from the start of an
investigation into an alleged rape to its conclusion. This would
provide invaluable information on how officers come to particular
174
See note 7 above, para. 6–18.
175
Jan Jordan’s recent study of the New Zealand police provides an important example of this
type of research methodology, see note 70 above.
176
For research that raises questions regarding the response of these two groups to cases of
rape, see: J. Temkin, ‘‘Prosecuting and Defending Rape: Perspectives From the Bar’’ (2000)
27 Journal of Law and Society 219; J. Temkin, ‘‘Medical Evidence in Rape Cases: A
Continuing Problem for Criminal Justice’’ (1998) 61 Modern Law Review 821; J. Temkin,
‘‘Doctors, Rape and Criminal Justice’’ (1996) 35 Howard Journal of Criminal Justice 1.
177
See note 70 above, p. 47.
178
In the Philadelphia study discussed earlier, officers disclosed that they might emphasise, de-
emphasise or even omit information from a case file in order to support a particular
conclusion regarding the veracity of a complaint: see note 66 above, p. 292.
C.L.J. False Allegations of Rape 155
decisions and crucially, allow an evaluation of the quality of the
decision-making process. Such research would require significant co-
operation between researchers and the police, which for a range of
operational and other reasons might not be forthcoming.
179
There is also a need for future research to examine several
trends that are apparent in the existing literature on police
recording practice. For example, future research should examine
criminal justice decision-making in the context of vulnerable groups
of complainants, such as those with learning disabilities or mental
health problems.
180
In their Home Office survey, Harris and Grace
found that of forty cases involving complainants with a learning
disability or mental health problem, 22 were no-crimed ‘‘usually
because they were believed to be false’’ and 18 were designated as
involving no further action.
181
Research by Lea et al. indicates that
significant numbers of cases are being no-crimed due to the
complainant being viewed as ‘‘an unstable female’’. The researchers
note: ‘‘The grounds for deeming a complainant as ‘unstable’ seemed
entirely dependent upon the investigating officer’s personal
judgement’’.
182
These researchers also found that the attrition rate
was ‘‘very high’’ where the complainant ‘‘had a learning disabilities,
psychiatric problems or physical disabilities’’.
183
Jan Jordan’s study
of the New Zealand police replicates these findings,
184
as does the
most recent Home Office research that examines rape case
attrition.
185
Given the vulnerability of people with learning
disabilities and mental health problems, it is essential that future
research focus on police treatment of such cases and the basis upon
which allegations are no-crimed or NFA-ed.
Not only is there a need for further quality research into the
approach of criminal justice professionals to the issue of false
allegations, there is also a need to be mindful of the perils of
supporting research that may have limited value. Endorsing further
research into Statement Validity Analysis, the Home Affairs Select
Committee stated: ‘‘We recommend that resources are channelled
into researching and piloting the use ‘statement validity analysis’ as
179
Sue Lees for example, noted in her study of police recording practice the ‘‘arduous process of
negotiation’’ with the police in order to get access to police case files: ‘‘Unreasonable Doubt:
the Outcomes of Rape Trials’’, in Hester, see note 5 above, p. 100. Such problems would
likely be increased by attempts to use more invasive research techniques.
180
Evidence suggests that in the past the police have been eager to dismiss complaints of rape
by other groups, such as prostitutes. For discussion see: Katz and Mazur, note 52 above, ch.
13.
181
See note 16 above, at p. 23.
182
See note 29 above, p. 593.
183
Ibid., at p. 594.
184
See note 70 above, pp. 36–37.
185
See note 14 above, p. 48 (noting that ‘‘those with disability were almost twice as likely to be
in the false allegations group as the non-disabled’’.)
156 The Cambridge Law Journal [2006]
a tool for evaluating the credibility of witness testimony in complex
historical child abuse cases’’.
186
For the reasons discussed earlier, it
has to be questioned whether this method of analysis, even if
reliable, would significantly assist investigators. The Home Affairs
Select Committee’s uncritical approach to SVA is unfortunately
indicative of the approach of many to the issue of false allegations
where research is endorsed with little concern for its reliability.
VI. CONCLUSION
The issue of false rape allegations should not be viewed as a
peripheral matter of little concern to those who are seriously
concerned with the way in which rape complaints are handled by
the criminal justice process. It is not only an important issue for
those concerned with the treatment of complainants, but it also has
implications for suspects and defendants. The actual rate of false
allegations may also be highly relevant to the future direction of
legal policy. For example, if the rate of false allegations is
significantly higher than for other serious offences, then this may
require a re-assessment of legal provisions relating to such things as
suspect/defendant anonymity.
187
It is also evident that police officers
no-crime some reports on the basis of highly questionable
assumptions concerning appropriate or expected complainant
behavior and responses to rape. In order to address this particular
issue, the actual rate of false allegations is much less important
than educating police officers regarding the range of normal
responses exhibited by rape victims. Education, however, should
not be limited to police officers and should include prosecutors and
forensic medical examiners.
The issue of false rape allegations also has implications for
scholarship, as well as the enforcement of rape law. The literature
on false allegations requires careful analysis, yet such an approach
is often absent from discussions within legal and other scholarship.
One of the interesting aspects of this analysis has been the way in
which scholarly trends repeat themselves. Just as early legal
commentaries uncritically adopted psychoanalytical theories of why
women make false complaints, along with claims that false
allegations were common, in the last three decades there has been a
lack of critical analysis by those who claim a low false reporting
rate and the uncritical adoption of unreliable research findings.
There has also been a failure to acknowledge the methodological
186
See note 135 above, para. 50.
187
In addition to the other arguments and issues of policy that are also of importance when
considering reform of the law in this area.
C.L.J. False Allegations of Rape 157
limitations of much of the existing research and the state of our
current understanding of the rate of false allegations. As a
consequence of such deficiencies within legal scholarship, factual
claims have been repeatedly made that have only limited empirical
support. This suggests a widespread analytical failure on the part of
legal scholarship and requires an acknowledgment of the weakness
of assumptions that have been constructed upon unreliable research
evidence. Ultimately, the criminal justice system and those writing
about the issue of rape have dealt poorly with the issue of false
allegations. Given the legal and societal prominence of this subject,
it is a failure that should be addressed.
158 The Cambridge Law Journal [2006]
