Mario

So we have to be very careful. It is important that we protect people against accusations of sexual harassment that are unfounded. A single accusation can ruin reputations, a lives, even if the person is found innocent. But we also have to protect victims and their ability to speak out, on a crime in which the victim is often at a disadvantage and which people often go silent on out of fear or shame already.

And truth be told, our burden of proof becomes an issue. How do you differentiate in court wether a woman FELT raped, FELT violated, and a jury doesn’t necessarily disagree with what happened, but don’t feel it legally constitutes a violation so the accused is found innocent; or a case where the accuser maliciously prosecuted the defendant or accused them for personal gain; or a case where the evidence isn’t enough to find the defendant guilty of rape legally, but it also isn’t enough to concretely prove a rape didn’t happen? That becomes very important in how that law is written.

You must realize that an overly vague law penalizes legitimate accusers just for losing a case, even perhaps if that loss is on something procedural. But an overly rigid law doesn’t really help men- if you need a recording or a text message spelling out explicitly that the accuser says they are making it all up- you’re not always going to get that. This isn’t Perry mason.

And where do we stop? If I accuse you of rape, and then you counter for false accusations, and then I counter for false accusations of false accusations... how many trails are we going to have? How do we expect to have clean jury pools, especially on high profile cases, when people have already seen the criminal trial of the accused rapist and seen evidence and heard testimony, seen the guy get off on the charges, and now are supposed to consider the case with minimum bias after it’s been tried in the media?

It’s all very messy. So what I am saying- is be careful what you ask for. Be SPECIFIC in what you ask for. Law is like a cursed monkey paw- it grants wishes but phrasing will get you in trouble often.

With that said- there are ALREADY, in almost all legal systems, criminal and civil charges that can be brought against a person who maliciously prosecutes, lies under oath, gives false statements, files false police reports, defames a person, falsely accuses another of a crime, leads to the false imprisonments of another, etc. there are a TON of laws already on the books that cover prosecuting a false accusation- including rape. So do we NEED. A specific law JUST for rape accusations? If so- why, when we already have laws that cover the issue?

Ask yourself what that law would say. What is its purpose? HOW DOES IT PROTECT ANYONE? Ask yourself if false rape accusations are even a common enough occurrence for justifying the burden to the system and consequences of new legislation that covers things already under existing legislation.

As previously mentioned- the majority of rape cases involve a power imbalance between accused and accuser. So then- what is the damage of false rape accusations? Loss of money- your career and job and public image is one. So how much money are you going to get from the waitress at Fudruckers? That’s a major problem with civil suits as is. If fleabag joe burns your house down- the court can order him to pay you back $1.5 million- but where, and WHEN- will you see the money? If joe makes $50k a year you might see what? MAYBE $10-20 a year at the EXTREME? Likely $5-10? If Joe makes $20k- it’s gonna take awhile to get you 1.5 mil at $2k a year.

Miranda S Overton, Norfolk Station Virginia, accused sailors of rape in the barracks, charged for false accusations. Accusations made 2018. Charges against her 2019.
2019, Albany Ga, Cheilyndra Williams arrested on charges for false accusations of rape.
Jemma Beale, London, 2017, multiple accusations of false reporting of rape.
Cynthia Anne Wood, Oklahoma, 2017, arrested, false rape accusations against a boyfriend.
Kellie Bartlett, Charlotte NC, 2018, charged with falsely accusing a deputy of rape.denied early parole.

I could go on. There Are quite a few discussion about the UK policy and practice, and how aggressive it is seen as being in prosecuting “false accusations” of rape. In America, I had more trouble finding statistics and credible discussion of the issue. As I mention in my lengthy comment there are some complications to prosecuting “false” accusations and the UK grapples with many of them- over the 2008-2018 period over 200 women were arrested or tried for false rape accusations. Over that same period the number of reported rapes in the UK increased every year, with a high of 38% yoy. The UK ONS estimates that 12% or so of the population has been the target or victim of a sex crime.

A major problem you must be careful of when looking at statistics is that “false rape” statistics usually do not differentiate between cases where an accuser was found to be making malicious or intentionally false accusations; and cases where no malice or intent was proven but in which not enough evidence to support moving forward with the case was found. In other words, wether they proved the accusation was a “lie” or wether they just could not prove it was true enough to make a criminal case. An an Absence of evidence doesn’t make either party guilty, but such cases tend to be included in statistics on false accusations. The general range the various world legal estimates mostly fall into is that about 1.5-10% of a countries rape cases are “false” in some way- this includes cases where rape is accused but not enough evidence exists to support the allegation, but an allegation isn’t disproven either.

One common theme you’ll often find in such cases is that the accusers report being asked to the police station, they believe- to discuss their rape cases. They are questioned by detectives, and generally speak freely as they have not been arrested and believe they are providing evidence as a victim, but are being questioned by detectives to build a criminal case against them. An innocent person who has accused another of a crime will also generally not bring an attorney along to such an event unless they are well versed in law and financially capable.

But there in lies a large part of the problem. To prove that the accuser made an intentionally or maliciously false accusation you often need a “smoking gun”- testimony from people close to them or recordings of them or texts etc where they openly discuss committing fraud; or a confession. In absence of these things, you need to hope for second hand evidence or more circumstantial evidence- they said they were raped at a hotel by this guy at 9pm, video or credit card receipts show he was at the bar until at least 10... or there are no witnesses at the hotel or footage of him ever being there etc.

If he WAS actually there... did he rape them, or just happen to be there? Did they see him there and decide that he was their “mark” or did they just get mixed up? Was it after 10pm and not 9pm? Was it someone that looked like him to them? Was it just a case of a trauma victims memory and the guy didn’t look like them, but in their head that’s the face they remembered?

There is so much that is unreliable about eye witness testimony, human memory, especially in trauma- and the fact that as has been discussed often- accounts may honestly differ. An accused rapist may have actually not thought a woman was drunk for example, or been too tipsy etc. to notice. From her perspective it may be rape, from his not- and it all adds to the complexity on top of any motivation each party may have to lie about details or the event as a whole.

Rape is one crime that in practice- we don’t really require intent to commit. You can commit sexual assault without intending to- but it is still relatively hard to prove often legislate cases of rape because it often comes down to wether both people were (or could have been) in the same place at the time it supposedly happened, and then he said she said with maybe some third parties opinions on what they saw. False accusations are another crime that is often hard to prove we’re made maliciously because now we actually have to prove what a person was thinking, feeling, what they knew or we think they should have known.

There is a huge problem with how do we protect the ability of victims to come forward, often at a socio economic disadvantage to the accused, overcome social stigma and trauma and potential consequences to their own life (everything from being a whistle blower, being targeted by angry crazies, how their families and partners may react etc) and overcoming the sentiment many victims have that there just isn’t any point to coming forward, little or no good will come from it and it can’t help them, only hurt them. And adding the thought: “if he isn’t convicted, I could be charged with a serious crime and be labeled a liar while my rapist is a public victim....” REALLY hurts the process.

But we do need to protect people from false allegations. Just an allegation ruins lives. Makes the accused, even those found innocent- often targets of stigma and harassment and angry crazies. The public humiliation and co sequences can and does ruin careers and relationships and opportunities in life.

There is a culture though- the Kansas woman who counter sued for example, upon reporting her rape, evidence she showed the court has police officers making statements that even before she was charged with false accusations, while she was a crying rape victim reporting a crime- officers didn’t believe her, one even commented they figured that she had cheated and was covering it up with a rape charge. This isn’t uncommon. We won’t go down the rabbit hole of police demographics or culture or any of the reasons- but often times when a woman reports a rape, the initial reaction from many is “bullsh%t.”

Big Hollywood names got away with rape for decades or more simply because people didn’t want to believe they had done what many knew or suspected. Cosby, R Kelley, Many people STILL refuse to admit they did things they were convicted of or in some cases caught on rape doing. Many more don’t care- they’d probably be fine with these entertainers producing content from their cells. Certainly Hollywood insiders didn’t care and were fine working with these people and profiting from them.

Epstein was a globe trotting pedo and it wasn’t a big secret, and yet we see him with current and former presidents palling it up, rubbing elbows with the rich and famous. The general outrage about Epstein is about his murder/suicide and pointing fingers at which powerful person was involved- not at his sexual abuse of all those kids. Sure most people aren’t for it- but it’s not the main focus of peoples outrage. Finding ways to implicate politicians they don’t like is. We’ve heard more outrage over who hung out with the guy than over what he actually did. “He did a bad thing...” we processed that. Moved on.

And these people operated right in the open. We have so many coach scandals and other serial offenders who get away with this stuff for decades or more, being fed a stream of new victims who entire institutions have mechanisms and unwritten policies in place to keep the machine going, written policies to help absolve them of culpability and create a plausible deniability. When/if they get caught, everyone has their speech on how heinous it all is already prepared.

So calling someone accused of rape guilty before they are even tried is VERY bad- but so is a culture that is biased to try and ignore or wash away accusations, one where any sizable percent of people decide an accused is above incrimination or an accuser is a liar before the evidence has been seen. That’s where we need the most reform for rape- in ourselves. We need to stop making flash decisions before the facts have had a chance to be set in front of us. We need to stop condemning the accused, or the accuser, before they’ve had their day in court.

We can try all we want to legislate and legislate a system designed to make up for all our failings- all you will get is a rigid and sprawling system that doesn’t help anyone except lawyers. Rape is a complex and nuanced thing to try and legislate. It requires a delicate but firm touch in law, with compassion and objectivity as much as possible. We can improve the laws we have to better help and protect ALL people- but at that, we still can’t rely entirely on the law to fix problems that are caused by us as a society. We have to make changes to how we think.