Welcome back to Foiling Fallacies (FFS) – the series where I explore the examples that are brought up to derail debates when all hope of making one’s case is gone. These anecdotes represent such rare possibilities or exceptions to the rule that bringing them up is a logical fallacy and causes people like me to mutter “for fuck’s sake.”

Trigger warning: This post contains discussion of rape and sexual violence and the mistreatment of victims by the criminal justice system and society and might be triggering.

Today I bring you – The Woman Who Cried Rape.

It seems that every time I am in a discussion or debate about sexual violence, whether it be in response to a recent allegation of campus sexual assault, a general debate about rape culture or a discussion regarding people with whom you should not ride on elevators at conferences, someone brings her up. She is often described as a cold-hearted bitch, motivated by revenge or a desire to punish someone they dislike, or a misguided college student with a case of shame-filled buyer’s remorse. Whatever her motive, she has falsely accused some poor innocent guy of rape, an accusation that ruins his life.

Now, you might recall from my last foiling fallacies post that I am not saying that these people don’t exist. I would be lying if I said that no woman has ever falsely accused someone of rape. But, I can say definitively that this is so rare that to bring it up in debates about rape is a red herring or strawman fallacy.

Here’s why:

Most rapes go unreported. Whether it’s fear, shame, how the systems with which they have to interact treat them or a combination of those and other factors, most people who are raped don’t report those rapes to law enforcement. Different estimates put the number of rapes that go unreported between 68 and 90 percent.

And those few women – those “good” rape victims who do the “right” thing and report their rapes right away to law enforcement? They are subjected to systems that are often unkind, unsympathetic, unbelieving and ineffective. Contrary to what you see on Law and Order SVU – a rape exam is often a long, uncomfortable, scary process. Thank goodness for medical advocates and forensic nurse examiners! The questioning she then receives by law enforcement may seem more like an interrogation about what she did and didn’t do than a victim interview about what happened to her. And the results of that exam and the evidence collected? It’s likely to sit in a storage room and go unprocessed. What?! The current backlog of more than 400,000 rape kits (that we know about) is due to two key problems with the process. 1. Law enforcement and prosecutors have the power to determine if a rape kit ever gets sent to a lab for analysis. If they don’t believe her, don’t have the financial resources or for some other reason decide not to move forward with an investigation, analysis isn’t ordered – even though that analysis might corroborate her story and provide needed information to apprehend and prosecute rapists. The second problem exists in crime labs, where rape kits are submitted for testing, but are not processed due to staffing shortages, funding issues or not being prioritized.

The current backlog of more than 400,000 rape kits (that we know about) is due to two key problems with the process. 1. Law enforcement and prosecutors have the power to determine if a rape kit ever gets sent to a lab for analysis. If they don’t believe her, don’t have the financial resources or for some other reason decide not to move forward with an investigation, analysis isn’t ordered – even though that analysis might corroborate her story and provide needed information to apprehend and prosecute rapists. The second problem exists in crime labs, where rape kits are submitted for testing, but are not processed due to staffing shortages, funding issues or not being prioritized. And even if rape kits are processed, only 7% of reported rapes lead to an arrest, only 3% of suspects are referred to a prosecutor and only 2% receive felony convictions. When you factor in unreported rapes, fewer than 2% of rapists will ever see the inside of a prison. When you consider how the system treats rape victims and the lack of offender accountability, it’s no wonder that women don’t report. Not reporting or not having enough evidence to prosecute does not mean a rape didn’t happen.

Very few rape reports are determined to be unfounded and even those that are unfounded are not necessarily false. According to a comprehensive analysis by the National Center for the Prosecution of Violence Against Women, only between 2 – 8% of rape reports made to law enforcement are determined to be false reports. This is about the same percentage as false reports made for other felonies. And even though males make up a small percentage of sexual assault victims, they are actually more likely to be sexually assaulted themselves than to be falsely accused of rape.

Despite the stereotype, false reports of sexual assault are not typically filed by women trying to get back at someone, cover up an affair or who regret a sexual encounter. The vast majority are filed by people with mental illnesses and involve vaguely described unknown perpetrators and violent attacks. It’s important to recognize that rape in reality doesn’t often look and sound like the stereotype that comes to mind when one thinks about what rape should look like – a violent attack by a stranger with a weapon – yet the overwhelming majority of false reports fit that stereotype.

Also important to consider is that many of the characteristics of rapes, rape victims and their reports that cause law enforcement, prosecutors, the media and our culture to challenge a rape victim’s credibility are common.

Most rapists are not strangers, but are known to their victims and may have even had previous consensual sex or a relationship with their victims

Most rapists are not strangers, but are known to their victims and may have even had previous consensual sex or a relationship with their victims Most rapes don’t involve a weapon or significant physical violence or injury.

Many rape victims don’t fight back.

Very few victims report immediately to law enforcement.

Many victims are young, homeless, suffer from mental illness, can appear belligerent or uncooperative or were using alcohol or drugs at the time of the crime.

Crime victims can make mistakes when reporting what happened to them to the police, but when you add sexual violence and trauma to the mix, the result can make a victim seem inconsistent or unreliable. Trauma can impact sexual violence victims’ ability to recall details or may result in victims omitting, exaggerating, fabricating part of their account, confusing the timeline of events or even recanting their story. They may tell different versions of their story to different professionals when they are able to recall new details.

Suspects often do not fit our stereotype of a “rapist” and can seem likable, trustworthy and sympathetic.

I am not unsympathetic with people who have been falsely accused of any crime and recognize how horrible it must be if you are innocent. However, I think that it is problematic if we assume that false accusations of rape are common. Especially to the extent where those who report rapes are almost always suspected of lying and treated with a lack of respect and dignity that is unwarranted and victimizing. We need to stop referring to victims as “alleged” victims unless their rapist is prosecuted and convicted, because in most cases, that just doesn’t happen. The way that rape victims are treated when they report rapes has got to change if we hope to work to end sexual violence in our communities. And posing the question – “what if she is crying rape?” in every debate on the subject is fallacious and contributes to the problem.

Image credit: stantontcady