The National Center for the Prosecution of Violence Against Women
False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute NonStranger Sexual Assault B Y D R . K I M B E R L Y A . L O N S W AY, S G T . J O A N N E A R C H A M B A U L T ( R E T . ) , D R . D A V I D L I S A K 1
voice THE
Helping
Prosecutors Give Victims a Voice
The issue of false reporting may be one of
opinions, based either on personal experi-
the most important barriers to successfully
ence or a non-systematic review (e.g., of
investigating and prosecuting sexual assault,
police files, interviews with police investiga-
especially with cases involving non-strangers. non-strangers.
tors, or other information with unknown
In this article, we will begin by reviewing the
reliability and validity).
research on the percentage of false reports and then go on to discuss some of the com-
Prior “researc h:” The Ka nin
plex issues underlying societal beliefs and
study
attitudes in this area. In the most frequently cited study on this
How Many Sexual Assault Reports are False?
topic, Professor Eugene Kanin (1994) reported that 41% of the 109 sexual assault reports made to one midwestern police agency were deemed to be false over a
One of the most common questions we
nine-year time period. However, the deter-
address in training presentations with pro-
mination that the charges were false was
fessionals—as well as personal conversa-
made solely by the detectives; this evalua-
tions with lay people—is how many sexual
tion was not reviewed substantively by the
assault reports are false. In the research lit-
researcher or anyone else. As Lisak (2007)
erature, estimates for the percentage of sex-
describes in an article published in the
ual assault reports that are false have varied
Sexual Assault Report:
widely, virtually across the entire possible spectrum. For example, a very comprehensive review article docum documented ented estimates in the literature ranging from f rom 1.5% to 90%
American Prosecutors Research Institute
(Rumney, 2006). However, very few of these estimates are based on research that could be considered credible. Most are reported without the kind of information that would
Volume 3
be needed to evaluate their reliability and
Number 1
validity. A few are little more than published
Kanin describes no effort to systemize his own ‘evaluation’ of the police reports—for example, by listing details or facts that he used to evaluate the criteria used by the police to draw their conclusions. Nor does Kanin describe any effort to compare his evaluation of those reports to that of a second, independent research— providing a ‘reliability’ analysis. This violates a cardinal rule of
science, a rule designed to ensure that observations are not simply the reflection of the bias of the observer (p. 2). 2).2
Methodologically rigorous
researchers to be false (e.g., a relative or
research finds 2-8%
boyfriend).
In contrast, when more methodologically
Grace, Lloyd, and Smith (1992) conducted a
In other words, there is no way to explore
rigorous research has been conducted,
similar analysis of the evidence in all 348
whether the classification of these cases as
estimates for the percentage of
rape cases reported to police in England
false was simply made as a result of the
false reports begin to conver converge ge
and Wales during the first three months of
detectives’ own perceptions and biases,
around 2-8%.
1985. After reviewing the case files, reports from forensic examiners, and the statements
without any real investigation being conducted. This concern is compounded by the
For example, in a multi-site study of eight
of victims and suspects, 8.3% were deter-
fact that the practice of this particular police
U.S. communities involved in the “Making a
mined to constitute false allegations. This
department was to make a “serious offer to
Difference” (or “MAD”) Project, data were
study was sponsored by the British Home
polygraph” all rape complainants and sus-
collected by law enforcement agencies for
Office.
pects (Kanin, 1994, p. 82). In fact, this prac-
all sexual assault reports received in an 18-
tice “has been rejected and, in many cases,
24 month period. Of the 2,059 cases that
A similar study was then again sponsored by
outlawed outlaw ed because of its intimidating impact
were included in the study, 140 (7%) were
the Home Office in 1996 (Harris & Grace,
on victims” (Lisak, 2007, p. 6). The reason is
classified as false. This is particularly note-
1999). This time, the case files of 483 rape
because many victims will recant when faced
worthy because a number of measures were
cases were examined, and supplemented
with apparent skepticism on the part of the
taken to protect the reliability and validity of
with information from a limited number of
investigator and the intimidating prospect of
the research. First, all participating law
interviews with sexual assault victims and
having to take a polygraph examination. Yet
enforcement agencies were provided train-
criminal justice personnel. However, the
such a recantation does not necessarily
ing and technical assistance in an ongoing
determination that a report was false was
mean that the original report was false.
way to ensure that they were applying con-
made solely by the police. It is therefore not
sistent definitions for a false report. In addi-
surprising that the estimate for false allega-
In reality, there is no way that an investiga-
tion, a random sample of cases was checked
tions (10.9%) was higher than those in
tor can make an appropriate determination
for data entry errors. More information on
other studies with a method methodology ology designed
about the legitimacy of a sexual assault
the MAD Project is available at
to systematically evaluate these classifica-
report when no real investigation has been
http://www.evawintl.org.
tions.
the department’s policy of making a “serious
To date, the MAD study is the only research
The largest and most rigorous study that is
offer to polygraph” all rape complainants. As
conducted in the U.S. to evaluate the per-
currently available in this area is the third
we will discuss at length below, the determi-
centage of false reports made to law
one commissioned by the British Home
nation that a report is false can only be
enforcement. The remaining evidence is
Office (Kelly, Lovett, & Regan, Reg an, 2005). The
made on the basis of findings from a thor-
therefore based on research conducted out-
analysis was based on the 2,643 sexual
ough, evidence-based investigation.
side the U.S., but it all converges within the
assault cases (where the outcome outcome was
same range of 2-8%.
known) that were reported to British police
conducted—and the victim is intimidated by
over a 15-year period of time. Of these, 8%
As a result of these and other serious problems with the “research,” Kanin’s (1994)
For example, Clark and Lewis (1977) exam-
were classified by the police department as
article can be considered “a provocative
ined case files for all 116 rapes investigated
false reports. Yet the researchers noted that
opinion piece, but it is not a scientific study
by the Toronto Metropolitan Police
some of these classifications were based
of the issue of false reporting of rape. It cer-
Department in 1970. As a result, they con-
simply on the personal judgments of the
tainly should never be used to assert a sci-
cluded that seven cases (6%) involved false
police investigators, based on the victim’s
entific foundation for the frequency of false
reports made by victims. There were also
mental illness, inconsistent statements,
allegations” (Lisak, 2007, p. 1).
five other reports made by someone other
drinking or drug use. These classifications
than the victim that were deemed by these
were thus made in violation of the explicit
2
The Voice
policies of their own police agencies. The
is seen as risky or problematic and if the
researchers therefore supplemented the
suspect seems like a “nice guy” who doesn’t
information contained in the police files by
look like a stereotypic rapist. We describe
collecting many different types of additional
these characteristics as “red flags,” in the
data, including: reports from forensic exam-
characteristics of sexual assault cases.
iners, questionnaires completed by police
What Are These Red Flags?
investigators, interviews with victims and victim service providers, and content analyses of the statements made by victims and witnesses. They then proceeded to evaluate each case using the official criteria for establishing a false allegation, which was that there must be either “a clear and credible admission by the complainant” or “strong evidential grounds” (Kelly, Lovett, & Regan, 2005). On the basis of this analysis, the per-
National Center for the Prosecution of Violence Against Women Jennifer G. Long Director Kristina Korobov Senior Attorney
Concerns regarding the legitimacy of a sexual assault report are often triggered by the presence of “red flags,” flags,” based on specific characteristics of the victim, suspect, or assault. Yet many of these “red flags” are actually based on our cultural stereotypes of what constitutes “real rape.”
centage of false f alse reports dropped to 2.5%. As professionals, we are often reluctant to Finally, another large-scale study was con-
believe that we share these stereotypes, but
ducted in Australia, with the 850 rapes
the reality is that everyone in our society is
reported to the Victoria police between
exposed to the same cultural messages
2000 and 2003 (Heenan & Murray, 2006).
about sexual assault, and they inevitably
Using both quantitative and qualitative
influence how we think about it. Because
methods, the researchers examined 812
these are societal stereotypes, they impact
cases with sufficient information to make an
not only jurors but also the other profes-
appropriate determination, and found that
sionals involved in sexual assault response
only 2.1% of these were classified as false
(e.g., law enforcement professionals, forensic
reports. All of these complainants were then
dramatically overestimates the percentage
examiners, victim advocates, prosecutors,
charged or threatened with charges for fil-
of sexual assault reports that are false. It’s
and other professionals). They even influence
ing a false police report.
probably not hard to imagine why. For
friends and family, all too often preventing
example, we have all seen how victims are
them from providing the emotional support
Of course, in reality, no one knows—and in
portrayed portray ed in the media accounts of rape
that victims of sexual assault so desperately
fact no one can possibly know—exactly
accusations made against popular sports and
need.
how many sexual assault reports are false.
cultural figures. These media accounts show
However, estimates narrow to the range of
us just how easy it is for us as a society to
It is typically not difficult for a professional
2-8% when they are based on more rigor-
believe the suspect’s statements (a respect-
working in this field to describe what our
ous research of case classifications using
ed cultural icon) and both discount the vic-
society considers to be a “real rape.” For
specific criteria and incorporating various
tim’s statements and disparage her
example, if you were to ask a roomful of
protections of the reliability and validity of
character.
people to describe what sexual assault is
the research—so the “study” does not sim-
like, they might give some of the following
ply codify the opinion of one detective who
This tendency to overestimate the percent-
common comm on characteristics:
may believe a variety of myths regarding
age of false reports can then introduce bias
• The victim and suspect do not know each
false reporting.
into an investigation and prosecution
other—they other— they are strangers.
because it causes us to give less credibility
• A weapon was used and/or physical vio-
This realistic and evidence-based estimate of
to victims and more credibility to suspects.
lence was reported.
2-8% thus suggests that the American public
This is especially true if the victim’s behavior
• There There are signs s igns of physical injury.
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3
• The The victim is hysterical and reports to law
abusing alcohol or contro controlled lled substances.
that: A false report is a report of a sexual
enforcement immediately.
• Victims Victims often omit, exaggerate exaggerate or fabricate
assault that did not happen (i.e., it was not
• The victim did not exercise bad judgment
parts of their account, and they may even
completed or attempted). While we might
at the time of the sexual assault.
recant altogether. They are not typically hys-
all agree with this simplistic definition of a
• The The victim has never reported a sexual
terical when interviewed by medical profes-
false report, people have different ideas
assault in the past.
sionals, law enforcement professionals, pros-
about exactly when they can decide that the
• The suspect is seen as sick, crazy, or
ecutors, or others.
sexual assault did not actually happen. For
deranged—not respectable, credible, or like-
• Suspects often do not fit our stereotype
example, investigators, prosecutors, and oth-
able.
of a “rapist.”
ers often decide that a sexual assault did not happen based simply on their own
Then when it comes to the victim’s involve-
In short, most sexual assault reports involve
views of the victim, the suspect, and their
ment in the criminal justice system, there
at least some of the “red flags” listed above.
credibility. This is an unacceptable practice.
are again a number of characteristics that
Yet sexual assault reports that are different
most people would assume are typical of
from this stereotype of “real rape” are all
In reality, investigators and prosecutors can-
sexual assault cases:
too often viewed with suspicion, not only by
not determine that the sexual assault did
• There There is a great deal of physical evidence
jurors, support people, and other communi-
not happen, simply because they suspect
to corroborate the allegation.
ty members, but also by the professionals
that the report is false, view it with suspi-
• The victim actively participates with the
who are tasked with responding within the
cion, or because the victim changes his or
investigation and prosecution.
criminal justice system.
her account of what happened.
account of what happened.
Of course, prosecutors may share some of
Investigators and prosecutors certainly can-
• The The victim is absolutely certain about the
these same “red “red flags” for suspecting that a
not determine that the sexual assault did
details of the sexual assault.
sexual assault report is false. Yet this doesn’t
not happen because the victim lacks credi-
• The The victim does not recant.
necessarily indicate a personal belief in the
bility—perhaps bility—perh aps because the victim is young,
• Not a single detail in the victim’s account
stereotype. Often, prosecutors understand
drunk, taking drugs, belligerent, or suspected
is provably false.
the realistic dynamics of sexual assault, but
of “being a prostitute.”
• The The victim does not change his or her
know that this stereotype will be prominent However, if you asked a room full of prose-
in the minds of judges and jurors as they
It is similarly impossible to determine that a
cutors how many of their cases resemble
make decisions regarding a sexual assault
sexual assault did not happen based on sym-
this stereotype, most would say that only a
case. Prosecutors may therefore believe that
pathy for the suspect, because he seems sin-
small percentage of their cases do. In fact,
they cannot ethically charge a defendant in
cerely outraged and upset by the charges, he
the research3 is clear that these stereotypic
cases that depart too much from the
has a credible story, or he appears to be a
characteristics of “real rape” are actually
stereotype stereotyp e of “real rape,” because a jury
responsible citizen who does not meet our
quite rare:
would not be likely to convict. All of this
personal assumptions about who is likely to
• In reality, most sexual assaults are perpe-
makes cases with “red “red flags” more difficult
be a “rapist.”
trated by someone known to the victim,
to investigate and prosecute—despite the
without a weapon, physical violence, or signs
fact that many of the characteristics are
In other words, professionals cannot deter-
of physical injury.
actually typical of sexual assault.
mine that the sexual assault did not happen
• Very few victims report immediately to law enforcement, but if they do report to law enforcement, it is often after a delay of days, weeks, months, or even years.
just because any of the “red flags” are pres-
What is the Actual Definition of a False Report?
• Many victims have a number of factors
ent in a sexual assault case. Rather, investigators and prosecutors must base all final judgments of a sexual assault
that limit their perceived credibility: they are
Although many people have different ideas
report on the findings from a thorough, evi-
often young, homeless, have a mental or
about what exactly constitutes a false
dence-based investigation. The determina-
physical impairment, are belligerent, and/or
report, the most reasonable definition is
tion that a report is false can then only be
4
The Voice
made when there is sufficient evidence to
enforcement agencies are so different; many
involved. For example, it is quite common
establish that the sexual assault did not hap-
are labeling sexual assault reports false
for sexual assault victims to describe the
pen (was not completed or attempted.) This
without any evidence to establish that they
incident as involving only penile-vaginal pen-
does not mean that the investigation failed
did not occur.
etration because they are uncomfo uncomfortable rtable
to prove that the sexual assault happened— in that case the investigation would simply be inconclusive or unsubstant unsubstantiated. iated. It also does not mean that the suspect was unable
reporting other crimes such as oral copula-
B u t W h a t i f P a r t o f tion or anal penetration. the Report is False? Many victims give information that is incom-
to successfully complete the sexual
plete, inconsistent, or untrue because they
assault—this would be an attempted sexual
We have therefore sought to offer a clear
are afraid that they won’t be believed or
assault and/or some other sexual offense.
definition of what constitutes a false report.
that they will be blamed for the sexual
Next we want to address the very common
assault. To illustrate, victims may omit details
This definition is consistent with guidance
problem that investigators and prosecutors
that will undermine their credibility, such as
provided by the FBI Uniform Crime Report
face—that parts of the victim’s account may
drug or alcohol use, prostitution, or other
(UCR) on methods for clearing cases.
be false, omitted, exaggerated, or inconsis-
unflattering or even illegal behavior. Of
Specifically, the UCR Handbook states that
tent with other information that is given. In
course, victims may also omit details about
a case can only be unfounded if it is “deter-
other words, how false does a false report
their own unlawful activity out of the fear
mined through investigation to be false or
need to be? Does the whole report have to
of being arrested. 5
baseless. In other words, no crime
be false to constitute a false report of sexu-
occurred” (p. 77). This seems clear, because
al assault?
Victims also sometimes minimize what happened or change the details in order to
a case cannot be “determined through investigation to be false or baseless” if no
For most criminal justice professionals, it is
protect the perpetrator. This can occur
investigation was conducted or if it yielded
not difficult to come up with reasons why
when the two people have a relationship,
sexual assault victims might omit, exagger-
when the victim depends on the perpetra-
ate, or even fabricate aspects of their
tor for financial or emotional support, or is
report.
afraid of getting the perpetrator “into trou-
4
insufficient evidence.
While this is the actual definition of a false report for law enforcement purposes, it
ble.” As a result, victims may give incorrect
does not typically reflect the way investiga-
For example, victims might give inconsistent
or confusing information about what actual-
tors, prosecutors prosecutors (and their supervisors)
or untrue information out of trauma or dis-
ly occurred.
tend to think of sexual assault investiga-
organization. When we are traumatized, we
5
tions. In fact, at virtually every training we
do not always think clearly and cannot nec-
Victims also may give information that is
offer on this topic, we hear from law
essarily provide information that is 100%
incomplete, inconsistent or inaccurate
enforcement professionals who unfound
complete and accurate. This is especially
because of their immigration status (or
cases—and prosecutors who reject them—
true for victims who have been sexually
assumed status). Many victims have learned
either because they do not believe the vic-
assaulted more than once, because aspects
from experiences in their country of origin
tim’s account or they failed to prove it con-
of the prior sexual assault may be confused
that authority figures are not to be trusted,
clusively. This practice fails to meet the
with the current one. Victims may also have
particularly law enforcement officers. In
needs of both victims and the larger society.
memory impairment due to alcohol or drug
addition, suspects often use immigration sta-
use.
tus against victims, threatening to report
So, although the actual definition of a false
them to immigration authorities or to have
report should be the same for all criminal
Victims might also give incomplete, inconsis-
them deported if they tell anyone about the
justice professionals, it is clear that the prac-
tent, or untrue information because they
sexual assault.
tices that are really used vary dramatically.
are uncomfortable relaying relaying details of the
This is why the percentage of sexual assault
sexual assault. This may be particularly likely
There can also be cultural reasons for exag-
reports that are unfounded by various law
for details regarding the sexual acts
gerating or minimizing the facts of a sexual
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5
assault report. For victims from another cul-
When we think about these dynamics, it
It is also important to fully—but gently—
ture, beliefs about what is acceptable to tell a
makes sense why victims might provide
explain to victims the negative impact of such
stranger and taboos about sexuality and sex-
inconsistent, incomplete, or even untrue
omissions, inconsistencies, or untrue state-
ual activity may influence their description of
statements. Yet many investigators and prose-
ments on their credibility during the law
what happened. This problem can be especial-
cutors have seen this as evidence of a “false
enforcement investigation. By doing so, inves-
ly pronounced when the (female) victim is
report.” In fact, none of these situations
tigators and prosecutors can emphasize the
from a minority culture and the (male) law
meets the actual criteria for a false report—
importance of complete truthfulness.
enforcement professional is from the domi-
because even if aspects of the victim’s
nant culture of the United States.
account of the incident are missing, exagger-
If the issue remains, the professional can
ated, or false, this does not necessarily mean
explain that conflicting information has arisen
that the sexual assault did not happen.
and ask for the victim’s help to make sense
Victims from a minority cultural group may be particularly reluctant to report a sexual assault against another member of their cultural group, because it is sometimes seen as a
of it. For example, an investigator could say: “I
Overcoming This Challenge
betrayal of the victim’s cultural group. This
need to ask these questions because I have to write a report on this, and I want to get every detail correct.”
reluctance may be heightened when there is
For all of the reasons provided above, it is
a perception that the cultural group is treat-
understandable understand able that victims often give infor-
Reduce the number of unnec-
ed unfairly by law enforcement.
mation in their statement that is incomplete,
essary professional contacts
inconsistent or even untrue. Nonetheless, However, one of the most common reasons
these issues can destro destroyy the victim’s credibili-
Problems Prob lems such as inconsistent i nconsistent statements
why victims alter or exaggerate the details of
ty if they are not handled by criminal justice
from the victim can also be decreased by
what happened is to create a case that seems
professionals. As a first step in overcoming
reducing the number of unnecessary profes-
more believable. This can be due to guilt,
this challenge, investigators and prosecutors
sional contacts. This is often a goal for com-
shame, or a fear of not being believed. Just
must recognize that these omissions, incon-
munities that implement a coordinated
like everyone else in society, sexual assault
sistencies, and even untrue statements are
Sexual Assault Response and Resource Team
victims know the stereotyp s tereotype e of a “real
understandable and should never be con-
(SARRT).
rape”—that it is perpetrated by a stranger
fused with a “false report.” Then, they can
with a weapon or physical violence, that it is
address these issues by exploring them gently
This does not mean that investigators and
reported to law enforcement immediately,
and nonjudgmentally with the victim.
prosecutors should be reluctant to conduct
and that the victim is emotionally hysterical.
The most important objective is to create a
follow-up interviews during the course of the
In an effort to be believed, therefore, victims
safe and nonjudgmental environment that
investigation, as additional evidence and infor-
may change aspects of the reported incident
encourages honesty even for unflattering or
mation is uncovered. In fact, such follow-up
to make it sound more like this stereotype.6
illegal behavior.
interviews are necessary to conduct a comprehensive prehensiv e investigation.
For example, victims may report that they
Then when an omission, inconsistency, or
were assaulted by a stranger when they really
untrue statement is suspected, the investiga-
Rather, the goal is to reduce the number of
knew the suspect, and perhaps even had a
tor or prosecutor can respond by pointing
unnecessary professional contacts that take
prior sexual relationship together.
out the issue and asking for clarification. It is
place, either because the case is being
entirely possible that the victim vi ctim simply made
screened or the victim is being “handed off”
Victims may also report that the suspect
a mistake or the professional misheard or
to another professional for some administra-
used a weapon when this is not really true,
misunderstood what the victim was saying.
tive reason. The purpose of any follow-up
or describe threats of physical violence that
Yet the appropriate time for this type of clar-
interviews should therefore be to gather
were not really made. Remember that victims
ification is after the victim has completed his
additional information information and clarify clari fy any ques-
also struggle with the same societal stereo-
or her description of what happened—not
tions, not to go over the same information
types as well.
immediately when the issue arises, because
again.
this will interrupt the victim’s narrative account. 6
The Voice
Because it takes time to develop rapport and trust with sexual assault victims, agencies agencies should not allow investigators or prosecutors to “hand off” a sexual assault investigation in
How to Handle the Frustrating Reality of “Real” False Reports
mid-stream, if there is any way to avoid it.
By describing this type of realistic sexual assault, you might not get the kind of reaction you were looking for, because people might respond to you in the same way they respond to victims of sexual assaults in the
This is a frequent cause of inconsistencies in
Having demonstrated that the percentage of
real world. That is, you might not be believed,
the victim’s statement, and it creates serious
false sexual assault reports is not as high as
or you might be blamed for the sexual
difficulties in establishing rapport and trust
many people think, this does not deny their
assault yourself.
with criminal justice professionals. Rather,
terrible reality. We all know that false reports
criminal justice agencies should have policies
do really exist, and they are incredibly damag-
Therefore, if you were going to file a false
in place that provide their personnel with the
ing both to criminal justice personnel and to
report of sexual assault, you would probably
resources needed to complete thorough sex-
the countless victims of sexual assault whose
describe a sexual assault that looks like the
ual assault investigations.
credibility they undermine.
stereotype of “real rape” that we have discussed at such length throughout this article.
Given the advantages of reducing the number
Potential indicators of a
of unnecessary professional contacts, some
false report
communities have also implemented a policy
For this reason, it is not surprising that the potential indicators of a false report are actu-
of “vertical “vertical prosecution” in sexual assault
Investigators and prosecutors may already be
ally the same as the stereotypic characteris-
cases. This strategy allows victims to work
familiar with some of the training materials
tics of “real rape.” To summarize material
with the same prosecutor throughout their
that are widely available to describe “indica“indica-
developed by McDowell and Hibler (1987),8
case processing, which which can be especially valu-
tors” of a false report of sexual assault.
realistic indicators of a false report could
able in larger jurisdictions where cases are
Unfortunately, some of these indicators are
potentially include:
typically initiated by one prosecutor prosecutor and
based on research that is extremely limited
• A perpetrator who is either a stranger or a
“handed off” to another. It clearly represents
and/or inappropriate for this purpose. For
vaguely described acquaintance who is not
a “Best Practices” for the investigation and
example, many were developed on the basis
identified by name. As previously discussed,
prosecution prosecu tion of sexual assault.
of FBI experience with false reports of
most sexual assault perpetrators are actually
stranger sexual assaults. These may not be
known to their victims. Identifying the sus-
Seek corroboration for
appropriate, appro priate, because these sexual assault
pect is therefore not typically a problem.
details in the vi ctim’s state-
reports are more likely to involve a perpetra-
However, victims who fabricate a sexual
ment
tor who is known to the victim. Regardless,
assault report may not want anyone to actu-
these training materials typically suggest that
ally be arrested for the fictional crime.
There are clearly a number of strategies that
the potential indicators of a false report are
Therefore, they may say that they were sexu-
investigators can use to clarify inconsisten-
actually the same stereotypic characteristics
ally assaulted by a stranger or an acquain-
cies, omissions, or untruths in the victim’s
of “real rape” described previously. This is not
tance who is only vaguely described and not
description of what happened. However, as
a coincidence.
identified by name.
inconsistencies or omissions, it is equally
Consider this: If you were going to file a false
• Victim claims of having physically resisted to
important to highlight the accuracy of other
report of sexual assault, would you describe
the utmost. In fact, many victims do not phys-
details in the victim’s statement. Thus, a pri-
the realistic dynamics of sexual assault?
ically resist during a sexual assault. There are
mary goal of any sexual assault investigation
Would you really say that you were assaulted
a number of reasons for this. Many victims
will be seeking corroboration for details in
by someone you knew, perhaps someone
are simply too surprised or confused to
the victim’s account of events, regardless of
with whom you have had a relationship or
resist, because they are assaulted by some-
whether or not they are relevant for estab-
even had sex? Would you really say that you
one they know and trust. Often, they do not
lishing an element of the offense.
were drinking at the time, or perhaps even
resist during the sexual assault because they
taking drugs, or engaging in other risky
are simply trying to make sense of what is
behavior? Probably not.
happening. Other victims do not physically
important as it is to seek clarification of such
The Voice
7
resist because they don’t trust their own
• Characteristics of the allegation that “copy“copy-
that a report is false is the result of “putting
perceptions of what is happening, or blame
cat” a highly publicized crime.
all the pieces together.”
ical resistance is not likely among victims
While these indicators may therefore raise
Responding to a suspected
who experience dissociation or frozen fright,
suspicion that a report of sexual assault may
false report
and those who have been drinking and/or
be false, none of them should be considered
taking drugs. Still other victims do not physi-
significant when observed in isolation. In fact,
Investigators and prosecutors should only act
cally resist because they are too frightened,
some of these factors are particularly chal-
upon their suspicion that a sexual assault
and may even fear that resistance will anger
lenging because they are associated both
report is false if these concerns are very seri-
their assailant and increase their risk of injury
with an increased risk of actually being sexu-
ous and they are based on the evidence
or death. Therefore, although many sexual
ally assaulted and with an increased likelihood
uncovered during the investigation. As
assault victims do not physically resist, a false
of filing a false report. Examples include
McDowell and Hibler (1987) describe, any
report may include a description by the vic-
“escalating problems in life or personal rela-
effort to challenge the validity of a sexual
tim as having resisted vigorou vigorously—in sly—in an effort
tionships” and “a documented documented history of
assault report could be devastating if the sus-
to appear blameless.
mental or emotional problems.”
picion is misplaced and the victim really was
themselves for the situation. Of course, phys-
assaulted. Such Such a challenge would certainly • Use of a weapon, serious physical violence,
On the one hand, these factors make an indi-
destroy the trusting relationship that must
and/or signs of injury. Most sexual assaults do
vidual more vulnerable to actually being sex-
develop between criminal justice profession-
not actually involve a weapon, physical vio-
ually assaulted. Yet these same factors may
als and victims for successful investigation
lence, or evidence of physical injury. Yet fabri-
also indicate emotional instability that could
and prosecution.
cated claims may be more likely to resemble
potentially lead an individual to file a false
the stereotype of “real rape” in this regard. In
report of sexual assault. Therefore, a report
It is therefore recommended that the tone of
some cases, individuals who falsely report a
should only be considered suspect when a
any challenge be supportive and based on the
sexual assault may even inflict physical injuries
number of these indicators are present. Then
information provided by the victim.
upon themselves to bolster the credibility of
the report can only be determined to be
their report. These can sometimes be identi-
false when the investigative facts directly con-
This decreases the likelihood of defensive-
fied by their nature and placement, which
tradict the victim’s account of events. In fact,
ness and allows for the continued investiga-
suggest that they were self-inflicted and are
the best way to identify a false report is to
tion of the report, in case the sexual assault
generally superficial.
uncover uncov er evidence that actually contradicts
was legitimate but the information provided
the victim’s account of events or makes it
by the victim was incomplete, inconsistent, or
• An assault involving only penile-vaginal pen-
impossible for the sexual assault to have
inaccurate.
etration. While other sexual acts are com-
taken place as described.
monly experienced by sexual assault victims,
When the validity of a sexual assault claim is
fabricated claims typically include only this
For example, there might be no sign of a
challenged, the person reporting the crime
“classic” form of rape (i.e., penile-vaginal pen-
physical struggle or injury when there logical-
may react with anything ranging from relief to
etration).
ly should be. Or perhaps the victim states
outrage.
that she was “hit over the head with a bat Still other indicators may be based on the
and knocked unconscious” or “cut with a
To p r o s e c u t e o r n o t t o
lifestyle or history of the reporting party,
knife” yet there is no evidence of such an
prosecute?
such as:
injury. There might even be evidence that the
• Escalating problems in life or personal rela-
victim purchased materials used in the sexual
If a report of sexual assault is determined on
tionships.
assault or wrote a note or letter that is
the basis of the investigative findings to be
• A documented history of mental or emo-
attributed to the suspect (McDowell &
false, investigators must then make the deci-
tional problems.
Hibler, 1987).Therefore, the determinati determination on
sion regarding whether or not to charge the individual with filing a false report. However,
8
The Voice
this decision must be made carefully, with
For one thing, such a charge is likely to be
many “real” false reports do not involve a
consideration of a number of factors.
publicized by the media and this can create
named suspect, because the intention is not
Investigators and prosecutors are thus
problems with future jurors who use it as
to get someone in trouble with the police.
advised to discuss the advantages and disad-
evidence to confirm their suspicion that
Rather, many “real” false reports involve only
vantages of prosecution with other profes-
many or most sexual assault reports are
a vaguely described stranger, so the victim
sionals involved in the multi-disciplinary
false.
can receive the caring attention of law
response to sexual assault victims (e.g., victim
enforcement officials and social service
advocates, forensic examiners). For example,
Even more important, such media coverage
providers without the fear that someone will
some of the advantages of pursuing such a
can serve as a serious deterrent for victims
be arrested. Clearly, these cases can be
charge would include the importance of con-
of sexual assault who might consider report-
extremely extrem ely frustrating for criminal justice pro-
ducting a thorough investigation and exoner-
ing the crime to law enforcement but fear
fessionals, but they are probably best handled
ating anyone who is innocent.
that they will not be believed.
with appropriate referrals for social services rather than prosecution for filing a false
Prosecuting someone for filing a false report
Given the size of the caseload that most
report. Two other examples of best practices
may therefore be most appropriate in cases
investigators and prosecutors handle, it
for handling these issues are to establish a
where an innocent person was arrested,
seems difficult to justify the inordinate time
multi-disciplinary review panel and develop a
booked, and perhaps even subjected to a
that would be involved in investigating and
position paper to provide guidance.
forensic examination. The failure to pursue
prosecuting someone for filing a false
charges for filing a false report could create
report—given that it is typically only a misde-
Establish a multi-disciplinary
the appearance of bias, by turning a blind eye
meanor offense.
review panel
While it is understand understandable able that investigato i nvestigators rs
To address these difficult issues, criminal jus-
Prosecution may also be appropriate in those
might want to prove that the report is false
tice professionals should also consider setting
rare cases that are very high profile and/or
out of a sense of frustration and a determi-
up a multi-disciplinary review panel, to dis-
involve hundreds of hours of investigative
nation to get to the truth, this is probably
cuss cases and investigations with input from
effort. In such cases, some law enforcement
not the best use of limited resources. Rather,
other members in the coordinated communi-
agencies have even sought restitution from
the decision regarding whether to charge
ty response to sexual assault. For example, a
the person filing the false report for person-
someone with filing a false report should
review panel might consist of victim advo-
nel hours consumed during an investigation
simply be based on the investigative findings
cates, forensic examiners, prosecutors, and
and even expenses associated with forensic
already documented in the case file.
others (including representatives from the
toward this criminal act.
examinations, DNA analysis, and searches of crime scenes and suspects.
crime laboratory, sex offender treatment It is also important to keep in mind that
program, and probation/parole). The purpose
most false reports of sexual assault are typi-
is not only to review the sexual assault
Finally, prosecution may help investigators to
cally the result of personal and emotional
reports that were unfounded by law enforce-
deal with the negative impact on their own
problems, rather than vengeful motives.
ment—or rejected by prosecutors—within a
personal and professional well-being. In the
specified time frame. The objective is to dis-
view of the person who investigated the
Despite the stereotype, false reports of sexu-
cuss and review these cases to determine the
case, this is often the most compelling reason
al assault are not typically filed by women
most appropriate response for victims whose
to prosecute the individual who filed the false
trying to “get back at a boyfriend” or cover
sexual assaults are not likely to result in suc-
report.
up a pregnancy, affair, or other misbehavior.
cessful prosecutio prosecution. n.
While there are examples of this kind of false On the other hand, there are also a number
report, the vast majority are actually filed by
Adopt a p osition paper to
of important disadvantages to charging some-
people with serious psychological and emo-
provide guidance
one with filing a false report, even if it is justi-
tional problems. In these situations, the per-
fied.
son files a false report for the attention and
Another best practice is to develop or adopt
sympathy that they receive. This explains why
a position paper to provide guidance for
The Voice
9
criminal justice professionals and others on
In fact, these issues have historically created a
Initial Response; and Part II: Investigative
the topic of false allegations, unfounded
bigger hurdle for sexual assault victims than
Procedures, and Part III: Investigative Strategy
cases, and victim recantation. The state of
any lack of training or experience on the part
& Prosecution. These training keys are also
Oregon has led the way in this regard, by
of law enforcement professionals. It is there-
published by the International Association of
publishing a concise discussion of the issues
fore critically important for investigators,
Chiefs of Police (http://www.theiacp.org/) and
in a four-page document that is available from
prosecutors, and others involved in the com-
available at: training keys.
the Oregon Attorney General’s Sexual
munity response system to recognize these
Assault Task Force. This document could
factors and seek to address them. To provide
The Oregon Attorney General’s Sexual
serve as a starting point for others seeking
assistance, a number of useful resources are
Assault Task Force has published a four-page
to disseminate similar guidance for profes-
available.
position paper on “False Allegations, Allegations,
sionals within a community, region, or state. Such guidance is often desperately needed, because the terms are so often misunder-
Recantations, and Unfounding in the Context
For More Information
stood and practices across agencies vary so widely.
http://www.oregonsatf.org/documents/False_ Allegations.pdf.
The EVAW International On-Line Training Institute offers a compre comprehensive hensive training
Conclusion
of Sexual Assault.” It is available at:
References
module on this subject, entitled: “False Reports: Moving Beyond the Issue to
Bachman, R. & Saltzman, L.E. (1995).
Again, one of the most important challenges
Successfully Investigate and Prosecute Non-
Violence against women: Estimates from the
for successfully investigating and prosecu prosecuting ting
Stranger Sexual Assault.” Assault.” This article consti-
redesigned survey. Washington, DC: Bureau of
cases of non-stranger sexual assault is the
tutes an adapted excerpt from that module.
Justice Statistics.
idea that many—or even most—reports are
Other modules are also relevant for address-
false. As long as this belief is accepted by law
ing these issues and improving the investiga-
Assault on Campus: The Problem and the
enforcement professionals, prosecutors,
tion and prosecution of non-stranger sexual
Solution. New York: York: Lexington Lexing ton Books.
jurors, and others, our efforts to improve the
assault. These include modules entitled:
criminal justice response to sexual assault
“Interviewing the Victim: Techniques Based on
C.W., & Douglas, K.A. (1999). Sexual assault
will have only limited impact. Only those
the Real Dynamics of Sexual Assault” Assault” and
and mental disorders in a community popula-
cases that look like our societal stereotype
“Effective Report Writing: Using The
tion. Journal of Consulting and Clinical
of “real “real rape” will be successfully investigated
Language of Non-Consensual Sex.” For more
Psychology, Psycholog y, 56, 252-259.
and prosecuted.
information on the On-Line Training Institute,
To move beyond this issue of false reporting,
Bohmer, C. & Parrot, A. (1993). Sexual
Brener, M.D., McMahon, Mc Mahon, P.M., Warre Warren, n,
Clark, L. & Lewis, D. (1977). Rape: The
please see:
price of coercive sexuali sexuality. ty.Toronto, Canada:
http://www.evawintl.org/evaw_courseware.
The Women’s Press.
one of the most important steps we can take
Fisher, B., Cullen, F., & Turner, M. (2000).
is therefore to recognize that the “red flags”
International Association of Chiefs of Police
The Sexual Victimization of College Women.
that raise suspicion in the minds of most
(July, 2005). Investigating Sexual Assaults:
Washington, DC: US Department of Justice:
people actually represent the typical dynam-
Model Policy and Concepts and Issues Paper.
National Institute of Justice and Bureau of
ics of sexual assault in the real world.
Published by the IACP National Law
Justice Statistics.
Enforcement Policy Center,Alexandri Alexandria, a, VA.
Grace, S., Lloyd, C., & Smith, L.J.F. (1992).
Once we accept this reality, we can begin to
Available at: Investigating Sexual Assaults
Rape: From recording to conviction. Research
move beyond this issue to more successfully
Concepts and Issues Paper (July 2005),
and Planning Unit Paper 71. London, England:
investigate and prosecute sexual assault
Investigating Sexual Assault Model Policy
Home Office.
cases, especially those involving non-
(May 2005). Three corresponding resources
strangers.
are also available: Part I: Investigating Sexual
of evidence? Investigating and prosecutin prosecutingg
Assaults; Part II: Elements of Sexual Assault &
rape in the 1990s. Home Office Research
10
Harris, J. & Grace, S. (1999). A question
The Voice
Study 196. London, England: Home Office. Heenan, M. & Murray, S. (2006). Study of
Multidisciplinar Multidisci plinaryy Approach. New York: Elsevier.
reported rapes in Victoria, 2000-2003.
Merrill, L.L., Newell, C.E., Milner, J.S.,
Melbourne, Australia: Office Off ice of Women’s Women’s
Koss, M.P., Hervig, L.K., Gold, S.R., Rosswork,
Policy, Department for Victorian
S.G., & Thornton, S.R. (1998). Prevalence of
Communities.
premilitary adult sexual victimization and
Humphrey, S. & Kahn, A. (2000). Fraternities, athletic teams and rape:
aggression in a Navy recruit sample. Military Military Medicine, 163, 209-212.
Importance of identification with a risky
National Victim Center (1992). Rape in
group. Journal of Interpersonal Violence, 15
America: A report to the nation. Arlington,
(12,) 1313-1322.
VA: National Victim Victi m Center. Cen ter.
Kanin, E.J. (1994). False rape allegations. Archives of Sexual Behavior, 23, 81-91. Kelly, L., Lovett, J., & Regan, L. (2005). A
Norton, R. & Grant, T. (2008). Rape myth in true and false rape allegations. Psychology, Crime, & Law, 14 (4), 275-285.
gap or a chasm? Attrition in reported rape
Rumney, P. N. S. (2006). False allegations
cases. Home Office Research Study 293.
of rape. Cambridge Law Journal, 65 (1), p.
London, England: Home Office Research,
128-158.
Development Develo pment and Statistics Directorate.
Tjaden, P. & Thoennes, N. (1998).
Available at
Prevalence, incidence, and consequences of
http://www.homeoffice.gov.uk/rds/hor-
violence against women: Findings from the
spubs1.html.
National Violence Against Agai nst Women Women Survey. Sur vey.
Koss, M.P. (1988). Hidden rape: Sexual
National Institute of Justice: Washington, DC.
aggression and victimization in a national sample of students in higher education. In
ENDNOTES
A.W. Burgess (Ed.), Rape and Sexual Assault 1
(Vol. 2, pp. 3-25). New York: Garland. Koss, M.P. & Cook, S. (1993). Facing the facts: Date and acquaintance rape. In R. Gelles & D. Loeske (Eds.). Controversies in Sociology. Newbury Park, CA: Sage Publications. Koss, M.P., Gidycz, C.A., & Wisnewski, N. (1987). The scope of rape: Incidence and prevalence of sexual aggression and victimization in a national sample of higher education students. Journal of Consulting and Clinical Psychology, Psycholog y, 55, 162-170. Lisak, David (2007). False allegations of rape: A critique of Kanin. Sexual Assault Report, 11 (1), pp. 1-2, 6, 9. McDowell, C.P. & Hibler, N.S. (1987). False allegations (Chapter 11, p.275-299). In R.R. Hazelwood & A.W. Burgess (Eds.), Practical Aspects of Rape Investigation: A
Yhe Voice
Dr. Lonsway is the Research Direcotr of EVAW International; Sgt. Archambault is the Executive Director of EVAW Internatiaonal; and Dr. David Lisak is an Associate Professor of Psychology at the University of Massachusetts. This article is an adapted excerpt from the training module of the same name in the On-Line Training institute hosted by End Violence Against Women (EVAW) International, International , at http://www.eva http://www.evawintl.org/evaw_courseware. wintl.org/evaw_courseware. 2 In an “addenda” to his article, Kanin (1994) describes how he also “gained access to the police records of two large Midwestern state universities” (p. 90) and examined all forcible rape complaints from a three-year period of time. Of these, 50% were classified as false reports, yet again this determination was made solely by police personnel and not reviewed in any systematic way by the researcher. Kanin does note, however, that these agencies did not use the polygraph and “neither declared the complaint false without a recantation of the charge” (p. 90). 3 Extensive research documents the characteristics of sexual assault victims, perpetrators, and incident. For example, see: Bachman & Saltzman, 1995; Bohmer & Parrot, 1993; Brenner, McMahon, Warren & Douglas, 1999; Fisher, Cullen & Turner, 2000; Humphrey & Kahn, 2000; Koss, 1988; Koss & Cook, 1993; Koss, Gidycz & Wisnewski, 1987; Merrill et al. , 1998; National Victim Center, 1992; Tjaden & Thoennes, 1998. 4 Uniform Crime Reporting Handbook (2004). Published by the Federal Bureau of Investigations (FBI) and available online at http://www.fbi.gov/ucr/handbook/ucrhandbook04.pdf. More information on the Uniform Crime Reporting Program is also available at the FBI website at: http://www.fbi/gov/ucr/ucr.htm. 5 This calls to mind the terminology of “factually innocent” which the courts use to dismiss cases where it can be established that the suspect did not in fact commit the crime. To illustrate, the California appellate court has defined someone as “factually innocent” when:
“The person did not commit a crime. It does not mean a lack of proof of guilt beyond a reasonable doubt or even a preponderance of the evidence, nor does the term encompass those situations where an accusatory pleading is not issued for technical reasons such as search and seizure issues.” 6 We believe that it is important for investigators and prosecutors to reassure victims that they will not be arrested for such behavior, but equally critical that departments have a policy of not arresting in such instances, unless it is absolutely necessary given the seriousness of the offense. Just as people who have overdosed on illegal drugs are treated for their medical emergency and not arrested, the priority in sexual assault cases must remain on investigating the crime and treating the victim with compassion. Arresting the victim will likely damage any trust that has been established with law enforcement, eliminate any chance that the victim will cooperate with the investigation, interfere with the victim’s emotional recovery, and perhaps even deter future additional victims from reporting. Only when absolutely necessary should law enforcement personnel consider arresting the victim of a sexual assault. When crafting a policy for law enforcement agencies, it is therefore important to make a distinction in the policy for responding to felonies versus misdemeanors that may have been committed by the victim. 7 This hypothesis is supported by research studies that document more stereotypic characteristics (e.g., offender violence) in accounts of rape that are generated as false, than in reports to law enforcement that are corroborated with an investigation and maintained as true (e.g., Norton & Grant, 2008). 8 Some readers may have heard of the “McDowell checklist” which is a series of questions purportedly used to score the account given by a sexual assault victim and determine whether or not it is a false report. Yet there is absolutely no scientific basis to support such a procedure—using this or any other similar “checklist.” Equally important, this type of procedure interferes with the rapport and trust that is needed for a law enforcement investigator to conduct an effective interview with a sexual assault victim. Of course, this in turn eliminates any chance for successful investigation and prosecution.
0
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11
voice
THE
is published by the American Prosecutors Research Institute’s National Center for the Prosecution of Violence Against Women. Items may be reprinted if attributed to
APRI’s National Center for the Prosecution of Violence Against Women. Please provide copies to The Voice. Contact us if you have inquiries or article suggestions at (703) 549-9222.. This project was supported by Grant No. 2004-WT 2004-WT-AX-K047 awarded by the Office Off ice on Violence Against Women, U.S. Department Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women, the American Prosecutors Research Institute or the National District Attorneys Association.
