There is a clear, conceivable and pervasive stigma against the perpetrators of sexual assault and other related crimes. Given the abject depravity of these crimes, this is understandable and expected. Rape is in its own category, “[n]o other crime is so fraught with controversy, so enmeshed in dispute and in the politics of gender and sexuality.” Just as the weight of the crime itself turns society against perpetrators, the blame placed on false accusers is proportional. For hundreds of years it’s been assumed that a large proportion of rape allegations are made for motives other than reporting an actual crime, fabricated to hurt those they are thrown at. In reality, sexual assault is no more often falsely reported than other crimes. This raises the question – of why – as a society this type of false report has become so ostracized. The vast majority of legitimate victims are women, as are the vast majority of false accusers, some argue that this is an issue of society delegitimizing victims. Some make a far more philosophical argument, that the difficulty in complete exoneration by the accused leaves a lasting stain on the criminal justice system. This stems from the fact that “[e]ven relatively quick investigations that eventually clear an accused person can have devastating consequences.” This argument attempts to explain the circumstances surrounding all accusations, even when the evidence is strongly rebutted, there is an attempt to not let a victim down, and to avoid leaving a sex offender free. It is a very difficult task to balance between protecting an alleged victim, and not ruining the life of a potentially innocent criminal. Some argue that “[a]ccusations of serious criminality, especially alleged sexual wrongdoing, are often their own convictions in the high court of public opinion because the stigma is so severe, and because definitively proving innocence in a disputed sex case often is impossible. This blog highlights the injustices suffered by persons wrongly accused of serious criminality.” There is no question that false reports have the potential to destroy the lives of those accused, ramifications occur socially, at school, at work, and can have a lasting impact on the life of those accused. It can’t be overstated how difficult this can be for those accused, but when only 2-10% of accusations are false, there is a group of people who receive the most serious ramifications of false accusations, actual victims.
It is impossible to categorize legitimate victims, they can be old or young, straight or homosexual, poor or rich, white or black. There are two things this entire pool of people shares, first, the horror of the act of the perpetrator, and a society which does not foster reporting. The majority of assaults are never reported, while numbers vary, it is certainly more than half. The process of reporting sexual assault is not ideal, it requires a victim to recount the experience, usually undergo a physical exam, and later maybe even have to testify in court. These barriers are harsh enough, but false accusers add another barrier, the fear a victim won’t be believed. Public opinion regarding allegations may be shifting – 71 men have been accused in Hollywood of misconduct –  and even the president has had at least 20 separate women who have come forward with accusations. What the contemporary victim of 2018 sees in the media is a lack of accountability for these crimes, and instead the vilification of false accusers like “Jackie” in the now infamous Rolling Stone article. These images don’t push the victim towards reporting, but quite the opposite, towards moving on and ignoring a crime. False accusations set back legitimate victims every single time, by compelling non-reporting, and by spurring the disbelief of a report with no physical evidence. The public policy energy and rallying cry should not be a war between defending rights of the accuser against the rights of accused, but instead a movement to stop false reporting and increase the percentage of reports that are even made.
While it’s impossible to point someone out as a victim, fabricators of sexual assaults fit a mold. Anyone can be a victim, but “[w]hen one looks at a series of fabricated sexual assaults, on the other hand, patterns immediately begin to emerge. The most striking of these is that, almost invariably, adult false accusers who persist in pursuing charges have a previous history of bizarre fabrications or criminal fraud. Indeed, they’re often criminals whose family and friends are also criminals; broken people trapped in chaotic lives.” The famous Duke lacrosse case stemmed from a false accusation by a woman who had already reported a brutal rape with no charges, along with a litany of other factors that make this kind of accusation more likely to be false. Police and prosecutors of course can’t look the background and history of an accuser when determining the validity of a claim. The story of the boy that cried wolf cannot be allowed to apply to sexual assault, all accusations must be looked and evaluated from a neutral stance, especially considering that those fitting the “profile” of a false accuser are disproportionately more likely to end up a legitimate victim. Instead of background of the accuser, the actual circumstances of the accusation could instead be evaluated, most false accusations are made: for personal gain, because of a mental illness, as revenge, or to create an alibi. False allegations are like most crimes, an individual is intentionally doing something to further their own goal (or psychosis). For the sake of real victims, and for the sake of those falsely accused, the criminal justice system needs to improve the process of figuring out which accusation is which. A study done by the LA Police Department found that nearly 80% of false accusations were highly dramatized claims of aggravated rape, assaults that would fit in a movie. The data “suggests that complainants who file false reports believe that their accounts will be more credible if they conform to the stereotype of a ‘real rape.’” No individual should ever be immediately discounted, the vast majority of reports ought to be believed. When a person without a history of “dramatic falsehoods” comes to police with an account of going home with someone without the intent to have sex but feeling the effects of a date rape drug and being forced to have intercourse, if there is no physical evidence to discount that, there is a high likelihood that crime occurred. Conversely, when a woman says she was brutally assaulted – like the UVA accuser did – and has a history of lying, it’s ok to question that. Beyond questioning someone like her, it’s important that there be legal ramifications for the crime of false reporting. The date rape victim underwent a life changing experience because of a criminal, but that is cheapened by the false accuser. The false accuser ruins the life not only of the person she accuses, but also sets back real victims by delegitimizing their experience.
This dual-effect of false accusations is the unseen and unspoken of effect. It’s exacerbated by the use of false allegations to delegitimize all reports of rape, as society tends to do. There are three big takeaways about false allegations. First, they are nowhere near as prevalent as people believe, if someone reports assault, it probably happened. Second, the small minority of false accusations have a hugely disproportionate affect on the lives of those they accuse and real victims. Third, the criminal justice system can do better. Some may find it hard to find sympathy for a drunk frat guy who gets wrongfully accused, but no one can deny the plight of the rape victim who just underwent one of the worst life experiences possible. That victim will weigh the options, maybe talk to friends or family for advice, but in the end has just a 37% chance of reporting that crime, and false accusers are just making it worse.
Blog Written By:
J Brent Marshall Pumphrey Law Clerk
 David Lisak et al, False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 1318, 1318 (2010).
 Stanford University, Men Against Abuse Now, Myths About False Accusation, (According to the FBI, “Only about 2% of all rape and related sex charges are determined to be false, the same percentage as for other felonies (FBI). So while they do happen, and they are very problematic when they do, people claim that allegations are false far more frequently than they are and far more frequently than for other crimes. Put another way, we are much more likely to disbelieve a woman if she says she was raped than if she says she was robbed, but for no good reason.”).
Id. (“Crystal Mangum, the accuser in the Duke lacrosse case, was the archetypal false accuser. She had previously reported another brutal rape/kidnapping in which no one was ever charged. She had a previous felony conviction, and she ultimately went to prison for an unrelated crime (in her case, murdering her boyfriend). She had trouble keeping her stripping job because the combination of drugs she was on—including both anti-depressants and methadone—made her keep falling asleep at work.”).
 Cassia Spohn & Katharine Tellis, Policing and Prosecuting Sexual Assault in Los Angeles City and County: A Collaborative Study in Partnership with the Los Angeles Police Department, the Los Angeles County Sheriff’s Department, and the Los Angeles County District Attorney’s Office 50, February 2012, https://www.ncjrs.gov/pdffiles1/nij/grants/237582.pdf.
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.