False allegations of rape: the true extent remains unknown.

The mental health impact on a man of having a false allegation of rape made against him can be devastating, and it is not uncommon for such men to become suicidal. However, the quest to estimate the rate of false allegations of rape is like hunting the snark: one does not even know what it is one is looking for, let alone where to find it. Unlike the snark, however, we know it exists. I focus here on female victims. Perpetrators of rape in English law are necessarily biological males. What constitutes an “allegation”? An anonymous claim in a social media post, such as #MeToo? Or an allegation made within a family court submission over contested child contact where bitterness is the ruling passion? Or a report to the police which may not result in a prosecution – or perhaps only those that do? And what does “false” mean? Certainly an allegation which is entirely fabricated, where no sexual encounter at all ever took place. But what if sexual intercourse did take place and is not disputed, but consent is disputed? How can we ever know the truth about consent, really? Conviction does not necessarily mean the defendant was truly guilty, and exoneration does not necessarily mean he was innocent. Susan Brownmiller’s 1975 book ‘Against Our Will: Men, Women and Rape’ claimed that just 2% of rape complaints were false. For decades thereafter various sources seemed to confirm that 2% figure, but Edward Greer (2000) traced their sources back to Brownmiller.  Brownmiller’s source was a speech by judge Lawrence Cooke on 16 January 1974 in which he said, “according to the Commander of New York City's Rape Analysis Squad, only about 2% of all rape and related sex charges are determined to be false”. Of any evidence of data, reporting, or other provenance behind that claim, there is none. However, in the sorry tale of misinformation on this topic it is the Crown Prosecution Service (CPS) who take the ignominious prize. Their 2013 report co-authored by Alison Levitt QC carried a Foreword by Keir Starmer, who was then Director of Public Prosecutions, (Levitt, 2013). It is an example of what I call “constructive mendacity”, by which I mean there is no sentence which is an undisputable untruth, but the whole construction is designed to grossly mislead. Starmer wrote, “One such misplaced belief is that false allegations of rape and domestic violence are rife. This report presents a more accurate picture”. But it does not. The report did not even address those thorny issues. Instead it merely looked at the rate of prosecutions for false allegations. But it gave the impression that it had addressed the harder question by stating, “The review has allowed us to examine the suggestion that false allegations of rape and/or domestic violence are rife”. The report found 0.62% of prosecutions for rape resulted in a prosecution for false allegation. But no one ever disputed that the rate of prosecutions for false allegation was very low. It is beyond credibility that lawyers would fail to appreciate the difference between the underlying false allegation rate and the rate of prosecution for false allegation, hence my claim of constructive mendacity. But ever since, people have been quoting the CPS report as demonstrating that the rate of false rape allegations is only 0.62%.

Evidence on the rate of false rape allegations has been compiled by Rumney (2006) and by Lisak et al (2010). All their sources are based on police reports and so all refer to percentages of allegations made to the police. Let me just flat-footedly give you the false allegation rates from 19 sources which Rumney quotes in his Table 1: 1.5% to 10%; 2%; 3% to 22%; 3% to 31%; 3.8%; 8%; 10.3%; 10.9% to 25%; 11%; 11.8%; 18.2%; 20%; 22.4%; 24%; 38% to 41%; 41%; 45%; 47%; 90%. You take my point: anywhere between 1.5% and 90% is not very helpful. The main reason for the huge spread is the criterion used to define “false”. Broadly there are two: A. Categorise an allegation as false only if a thorough investigation based on evidence has established that no crime was committed or attempted.

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