by Robby Soave · September 11, 2017
Gage SkidmoreVictims’ advocacy activists are not happy that Education Secretary Betsy DeVos intends to re-prioritize due process in campus sexual assault disputes. Dana Bolger and Alexandra Brodsky, former co-directors of the group Know Your IX, spoke for many when they called her plan “a signal that the Trump administration will make way for what is nothing less than an all-out attack on survivors.”
Of all the arguments activists are making against DeVos’s new approach, their favorite one seems to be this: Due process is well and good, but it’s not particularly important in sexual assault cases because victims rarely lie about being raped. To this point, they cite a statistic that suggests the rate of false rape reports is somewhere between 2 and 8 percent.
“The truth is that there is no scourge of innocent young men being unfairly targeted,” wrote Jessica Valenti. “Only 2 to 10 percent of rape accusations are shown to be false, and rapists themselves are rarely punished.”
Here’s why this argument makes absolutely no sense.
First, there are some reasons to be skeptical of the statistic. The various studies that produced it are, to varying degrees, flawed. Some of them aren’t even studies: When the 2 percent false-rape-report statistic first appeared in feminist author Susan Brownmiller’s 1975 book Against Our Will: Men, Women and Rape, the sole source was something a judge had said at a public meeting. And there are outliers—a study by Eugene Kanin found a 40 percent false-report rate. Like other studies on this subject, it has its flaws: Researchers relied on the police to make determinations about whether an allegation was demonstrably false or merely unproven.
Indeed, this is a serious problem with all of the studies—a reported rape is only considered false if the police can actually prove it false, usually because the victim recanted her statement or a witness other than the perpetrator contradicted the account. There could be more false rape reports than we think, because the police are not able to definitively prove the victim lied; or there could be even fewer, because the police erroneously classified some unproven rapes as false. As Bloomberg View’s Megan McArdle wrote about the false report rate, “Here’s the real answer: We don’t know. Anyone who insists that we do know should be corrected or ignored.”
One study that seems like it might be especially relevant to campus sexual violence is “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases,” which focused on reports made to the police department of a major university in the northeastern United States. This study put the false-rape-report rate at 5.9 percent. But this study was co-authored by David Lisak, the subject of Reason’s investigative series debunking many of his claims relating to serial rapists on college campuses. His canonical study on repeat offenders, which activists often cite when claiming that most campus rapists are serial predators, is hopelessly flawed; among other problems, the data were gathered at a non-traditional commuter college, and no effort was made to exclude non-students from participating.
But even if Lisak and other researchers are right that the false report rate is somewhere between 2 and 8 percent, there’s a bigger problem. These were reports made to the police. The present debate, in response to DeVos’s speech, doesn’t concern rapes reported to the police; it concerns sexual misconduct reported to university officials. It could well be the case that few people file a false report with the police (since they could be charged with a crime themselves for doing so) but are less discriminating when it comes to the campus process. This isn’t an indictment of victims: Keep in mind that in some of the most infamous university rape cases, the person filing the complaint wasn’t even the alleged victim. Critics who say that DeVos’s defenders are assuming that victims lie about rape should remember that Zoe Katz, the alleged victim in a University of Southern California case, said that she was not raped and that the accused student (her boyfriend) was innocent.
And even if very few reports were falsely filed, this would still not be a reason to flout due process. The rights of the accused still matter, after all. And the current system, in depriving the accused of certain protections to which they are entitled, all-but-guarantees subsequent court battles. DeVos was absolutely right to call this a “failed system.” Believing or disbelieving victims has nothing to do with it.