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Men Fear False Allegations. Women Fear Sexual Misconduct, Assault, and Rape.

November 25, 2018

MEN FEAR FALSE ALLEGATIONS. WOMEN FEAR SEXUAL MISCONDUCT, ASSAULT, AND RAPE.

By: Jackie Fielding, Volume 103 Staff Member

“Why do men feel threatened by women?” . . .

“They’re afraid women will laugh at them.” . . .

“Why do women feel threatened by men?” . . .

“They’re afraid of being killed.”

Second Words: Selected Critical Prose, 1960–1982, Margaret Atwood.[1]

Amidst the powerful #MeToo movement, there have been a barrage of accusations of sexual misconduct against powerful men in a variety of industries.[2] Most recently, Dr. Christine Blasey Ford bravely shared her account of President Trump’s Supreme Court pick, Brett Kavanaugh, drunkenly pushing her, groping her, and putting his hand over her mouth to prevent her from screaming.[3] After Dr. Blasey Ford testified in front of the Senate Judiciary Committee, Trump[4] spoke of his fear of false allegations of sexual misconduct: “[i]t’s a very scary time for young men in America . . . You could be somebody that was perfect your entire life, and somebody could accuse you of something . . . and you’re automatically guilty.”[5] Trump went on to describe how a man who has been accused of sexual misconduct will have his life “in tatters” and “shattered,” that his wife will be “shattered,” and his children destroyed.[6] Donald Trump Jr. agreed, noting that he feared more for his sons (and their risk of being falsely accused of sexual misconduct) than he feared for his daughters actually suffering sexual misconduct.[7] Should men be afraid?[8] If men are afraid of sexual misconduct allegations and women are afraid of sexual misconduct altogether, who is more worthy of protection? Should we presume the alleged assaulters as innocent until proven guilty or liable, or should we presume survivors tell the truth until their accounts have been disproven?[9]

I. LIAR, LIAR, PANTSUIT ON FIRE: IS RAPE AND SEXUAL ASSAULT COMMONLY FALSELY REPORTED?

The prevalence of sexual violence in the U.S. is devastating yet pervasive. In 2016, over 300,000 cases of rape or sexual assault were reported in the U.S.[10] However, many more rapes or sexual assaults may go unreported; some suggest that only eight to ten percent of women report their rapes to the police, leaving at least ninety percent of rapes unreported.[11] Trump has not denied that sexual assault and rape occur, but rather, he fearmongers by referring to the supposed prevalence of false accusations. While an estimated two to eight percent of sexual assaults or rapes are falsely reported,[12] this number only affects the number of reported rapes; therefore, the amount of false reports in comparison to the total number of sexual assaults and rapes is likely closer to .002 to .008%.[13] Statistically, it is overwhelmingly more likely that a person alleging sexual assault or rape is telling the truth than making a false accusation.

Given the extremely low likelihood of a false accusation, who should have the presumption of truth-telling; the survivor or the alleged perpetrator? Should the standard of proof take into account the low rate of false accusations and the difficulty in providing proof in many sexual assault cases? Or are traditional methods of adjudicating disputes not the best fit for sexual assault cases at all?

Usually, a survivor has the option to try to open a criminal case or bring a civil suit (although sometimes, a survivor has the option of an alternative form of conflict resolution). In criminal cases, the prosecution must prove every vital fact of the crime beyond a reasonable doubt;[14] this constitutionally-mandated standard can be a high threshold for survivors to meet, especially in circumstances where there were few witnesses or little tangible evidence. For a civil suit, the standard of proof is a preponderance of the evidence; additionally, a civil suit provides an opportunity for the survivor to be compensated if the alleged abuser is found liable that a criminal suit does not provide.[15] If a survivor happens to be a student at a university that is required to follow Title IX,[16] then the standard for university grievance and adjudication procedures is also a preponderance of the evidence (“more likely than not”).[17] While these avenues of conflict resolution may appear to offer the survivor choice, the level of decision-making autonomy for the survivor varies drastically (particularly in the criminal context, where the state is prosecuting the abuser and the survivor is not even a party to the suit), as well as the potential consequences for the abuser (ranging from criminal sentencing and fines, to restitution and compensation for non-economic damages, to university-level sanctions).[18]

II. LOOKING OUTSIDE THE COURTS FOR REDRESS

Some have suggested that the legal system’s traditional avenues of conflict resolution are not apt for the special circumstances involved in sexual misconduct and rape. Instead, a restorative justice process can provide a survivor with an opportunity to share their story and be heard by the community; compensation for their needs, such as housing and counseling; or perhaps a chance to witness their abuser take accountability for their actions and apologize.[19] A short-lived pilot program in Arizona called “RESTORE (Responsibility and Equity for Sexual Transgressions Offering a Restorative Experience)” created an opportunity for certain court-referred first-time offenders to avoid prosecution by completing a program that included “intensive treatment regimes, ongoing monitoring, and monthly reviews.”[20] Its funding did not last, but it boasted a rate of eighty percent of offenders that completed the program, with the offenders experiencing an evolution in the manner that they accepted responsibility for their offenses.[21] The goals of criminal justice can still be achieved through restorative justice programs, and these goals are achieved while the survivor maintains more autonomy in their own healing process.[22]

Despite the growth of restorative justice, most regions that offer it do not make it available to survivors of sexual assault;[23] many survivors may also be unaware of this option and believe their only possible course of action is reporting their experience with sexual misconduct to law enforcement or other relevant authorities. What are the consequences for a sexual assault or rape survivor who reports?[24] In the case of Dr. Blasey Ford, she and her family were unable to live at their home more than two weeks after she testified due to numerous death threats.[25] Others may suffer harassment, retaliation, unfair treatment in their community or workplace,[26] and the pain and discomfort of being questioned about perhaps the worst thing to ever happen to them.

What are the consequences to the accused—in this case, Judge Kavanaugh? He won’t be called “Judge Kavanaugh” for much longer. Now, it’s “Justice Kavanaugh.”[27]

  1. Margaret Atwood, Second Words: Selected Critical Prose, 1960–1982 at 413 (1982).
  2. See Anna North, The #MeToo Movement and its Evolution, Explained, Vox (Oct. 9, 2018, 12:30 PM), https://www.vox.com/identities/2018/10/9/17933746/me-too-movement-metoo-brett-kavanaugh-weinstein.
  3. Nomination of the Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States (Day 5), 115th Cong. 2–3 (2018) (written testimony of Dr. Christine Blasey Ford), https://www.judiciary.senate.gov/imo/media/doc/09-27-18%20Ford%20Testimony.pdf.
  4. Trump himself has been accused by more than twenty women of sexual misconduct. Eliza Relman, The 22 Women Who Have Accused Trump of Sexual Misconduct, Business Insider (Sept. 26, 2018, 5:26 PM), https://www.businessinsider.com/women-accused-trump-sexual-misconduct-list-2017-12. He has accused women of being paid to “make up stories” about him, a claim which has yet to be substantiated. Glenn Kessler, Fact-Checking President Trump’s Statements About Sexual Misconduct Allegations, Wash. Post (Sept. 26, 2018), https://www.washingtonpost.com/politics/2018/09/27/fact-checking-president-trumps-statements-about-sexual-misconduct-allegations/?noredirect=on&utm_term=.ffc514219bb9. In reality, Trump has paid two women that he has had prior illicit sexual relationships with to prevent them from sharing their stories. Id.
  5. Greg Sargent, President Trump and the War on Men, Wash. Post (Oct. 2, 2018), https://www.washingtonpost.com/blogs/plum-line/wp/2018/10/02/donald-trump-and-the-war-on-men/?noredirect=on&utm_term=.980ce2e0c405. These statements are in stark contrast to a 1989 interview where Trump stated that “The problem with our society is the victim has absolutely no rights and the criminal has unbelievable rights – unbelievable rights.” Andrew Kaczynski & Jon Sarlin, Trump in 1989 Central Park Five Interview: “Maybe Hate is What We Need”, CNN Politics (Oct. 10, 2016, 3:29 PM), https://www.cnn.com/2016/10/07/politics/trump-larry-king-central-park-five/index.html.
  6. Z. Byron Wolf, Trump Fine-Tunes His Campaign Attack on the #MeToo Movement, CNN Politics (Oct. 3, 2018, 5:13 PM), https://www.cnn.com/2018/10/03/politics/trump-metoo-movement/index.html.
  7. David Martosko, EXCLUSIVE: Donald Trump Jr. Tells DailyMailTV in First-Ever Joint Interview with Kimberly Guilfoyle that Sexual Assault Claims Make Him More Scared for His SONS than His Daughters Following He-Said She-Said Kavanaugh Controversy, Daily Mail (Oct. 1, 2018, 7:02 PM), https://www.dailymail.co.uk/news/article-6224635/Donald-Trump-Jr-Kimberly-Guilfoyle-DailyMail-TV-Boys-harmed-said-said-cases.html.
  8. For a discussion that if they were “afraid,” men may take sexual misconduct more seriously (as men may “challenge the habit of perceiving women as objects to be acted upon rather than real human beings with rights”), see Lynn Stuart Parramore, After the Brett Kavanaugh Confirmation Battle, Should American Men Be Afraid?, NBC News: Think (Oct. 8, 2018, 3:24 AM), https://www.nbcnews.com/think/opinion/after-brett-kavanaugh-confirmation-battle-should-american-men-be-afraid-ncna917406.
  9. While the answers to these questions are unfortunately beyond the scope of this Blog Post, luckily, there is currently an abundance of writings in the news providing insight on this topic. See, e.g., Rebecca R. Bernstein, Domestic Violence and Sexual Assault Survivors: Guilty Until Proven Innocent?, Odyssey (June 14, 2016), https://www.theodysseyonline.com/domestic-violence-sexual-assault-survivors-guilty-until-proven-innocent (“Here is my question, which is disturbing that it has to be a question, if we treat every attacker on trial with the same notion of ‘innocent until proven guilty’, why can we not give the victims the same merit?”); Morgan Barron, Barron: Balancing Believing Victims with ‘Innocent Until Proven Guilty’, Daily Utah Chronicle (Nov. 19, 2017), http://dailyutahchronicle.com/2017/11/19/barron-balancing-believing-victims-innocent-proven-guilty/.
  10. U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Criminal Victimization, 2016 at 5 (2017), https://www.bjs.gov/content/pub/pdf/cv16.pdf.
  11. Katie Heaney, Almost No One is Falsely Accused of Rape, N.Y. Mag.: The Cut (Oct. 5, 2018), https://www.thecut.com/article/false-rape-accusations.html.
  12. Dr. Kimberly A. Lonsway et. al, False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault 2 (2009), https://www.nsvrc.org/publications/articles/false-reports-moving-beyond-issue-successfully-investigate-and-prosecute-non-s. While false reporting does exist, some argue that interrogating sexual assault and rape survivors as suspects instead of interviewing them as victims is part of a societal suspicion around sexual assault and rape claims, and is detrimental to the victim; this sometimes occurs simply because the survivors don’t “act[] the way the police thought a victim should act.” Ken Armstrong & T. Christian Miller, When Sexual Assault Victims Are Charged With Lying, N.Y. Times Opinion (Nov. 24, 2017), https://www.nytimes.com/2017/11/24/opinion/sunday/sexual-assault-victims-lying.html; see also Lacey M. Sloan, Revictimization by Polygraph: The Practice of Polygraphing Survivors of Sexual Assault, 14 Medicine & Law 255, 256 (1995) (“In perhaps no other crime are the victims scrutinized in the manner experienced by sexual assault survivors. In a study by Williams and Holmes, 13% of the victims interviewed indicated that the ‘worst thing about this experience [sexual assault]’ was the ‘judgmental attitudes of others’, ranking this experience number five behind fear, helplessness, the sexual acts of the assault and negative personal consequences.”).
  13. Cf. Heaney, supra note 11 (using the statistic that five percent of rapes are falsely reported, and concluding that “the actual false allegation figure [is] closer to .005% (i.e., five percent of ten percent”).
  14. In re Winship, 397 U.S. 358, 364 (1970).
  15. Criminal and Civil Justice, National Center for Victims of Crime (2012), http://victimsofcrime.org/media/reporting-on-child-sexual-abuse/criminal-and-civil-justice.
  16. 20 U.S.C. §§ 1681–88 (2017).
  17. White House Task Force to Protect Students from Sexual Assault, Checklist for Campus Sexual Misconduct Policies 6 (2014), https://www.justice.gov/archives/ovw/page/file/910271/download.
  18. Id.
  19. Amy Kasparian, Justice Beyond Bars: Exploring the Restorative Justice Alternatives for Victims of Rape and Sexual Assault, 37 Suffolk Transnational L. Rev. 377, 377–78 (2014).
  20. Id. at 395–96.
  21. Id.
  22. Id. at 405–07.
  23. Id. at 382–83.
  24. Note that I am not pondering what the consequences are for people who falsely report; in those instances, someone could technically be sued for libel, slander, or filing a false claim or police report. In the case of Dr. Blasey Ford, an expert has commented that based on trends in false rape claims, Dr. Blasey Ford’s case “does not fit the profile.” Sandra Newman, I’ve Studied False Rape Claims. The Accusation Against Kavanaugh Doesn’t Fit the Profile, Vox (Sept. 18, 2018, 2:50 PM), https://www.vox.com/first-person/2018/9/18/17874504/kavanaugh-assault-allegation-christine-blasey-ford.
  25. Emily Birnbaum, Christine Blasey Ford Still Unable to Live at Home Due to Death Threats, Lawyers Say, The Hill (Oct. 7, 2018), https://thehill.com/homenews/senate/410340-christine-blasey-ford-still-unable-to-live-at-home-due-to-death-threats.
  26. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1)–(2) (2017). Because of these prohibitions, claims that the backlash of the #MeToo movement will include men not hiring women or refusing to travel with them may have legal consequences. Carlos Garcia, Human Resources Study Shows a Stunning Unintended Backlash to the ‘Me Too’ Movement, The Blaze (Oct. 9, 2018), https://www.theblaze.com/news/2018/10/09/human-resources-study-shows-a-stunning-unintended-backlash-to-the-me-too-movement (“There were men who specifically said I will not hire a woman going forward. . . . Those who said they would hire a woman said they would not travel with one.”)
  27. On October 5, 2018, the Senate voted for Brett Kavanaugh to become an Associate Justice of the Supreme Court of the United States. Roll Call Vote 115th Congress – 2nd Session, 115th Cong. (2018), https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=2&vote=00222.
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