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Q What percentage of rape reports are false?
Q When is it appropriate to prosecute someone for filing a false report of sexual assault?
Q Is there guidance available on prosecuting someone for filing a false report?
A What percentage of rape reports are false?

This may seem like a straightforward question, but in fact determining the percentage of false reports is complex. The OLTI module False Reports: Moving Beyond the Issues to Successfully Investigate Sexual Assault clarifies that a report can only be determined false based on the evidence from a thorough investigation:

…the determination that a sexual assault report is false can only be made if the evidence establishes that no crime was completed or attempted. This evidence will only be available after a thorough investigation, not after only a preliminary investigation or initial interview with the victim.

While there is a wide range of figures in the literature, methodologically rigorous research shows that the estimated range of false reports is between 2-8%. These studies include:

These studies indicate a far lower prevalence of false reports than people often believe. EVAWI’s Start by Believing campaign is designed to address this misconception and prevent unwarranted suspicion from compounding the trauma of sexual assault with disbelieving reactions from friends, family members, and responding professionals.

False reports are sometimes confused with other types of disclosures or cases. An article published in Violence Against Women identifies important distinctions among related concepts:

  • Deliberate falsehoods. This is what most think of, when an individual deliberately files a false report for some personal gain or other purpose.
  • Untrue statements without malice. This would include reports made by an individual suffering from delusions or a young person who simply does not understand the consequences of making a particular statement or allegation.
  • Inconsistent statements. There are countless reasons why victims might make statements that are inconsistent or even untrue. This could be the result of trauma as well as drug or alcohol use, which may be voluntary or part of the crime. Victims’ statements may also be inconsistent because they are striving to make their report sound more “believable,” or because they are embarrassed or uncomfortable discussing certain aspects of the crime. However, a report that is made with inconsistent or even untrue statements is not necessarily a false report.
  • “Unfounded” criminal cases. These cases include reports that are false as well as those that are baseless. A false report is defined above; baseless reports include those that do not meet the elements of a criminal offense.

To better understand these issues, see the EVAWI article Incomplete, Inconsistent, and Untrue Statements Made by Victims: Understanding the Causes and Overcoming the Challenges.

A When is it appropriate to prosecute someone for filing a false report of sexual assault?

In the US, prosecutors have an ethical responsibility to pursue charges only when:

  1. There is evidence to support the charges, and
  2. Prosecution is in the interest of the community they serve.

This obligation is clearly spelled out by the American Bar Association (ABA) in their Criminal Justice Standards for the Prosecution Function:

A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice (Standard 3-4.3).

The ABA Standards go on to note that a prosecutor is “not obliged to file or maintain all criminal charges which the evidence might support” (Standard 3-4.4). In other words, prosecutors should consider both the evidence and public interest in charging decisions, and they are not required to file charges just because they have the evidence to do so.

The ABA Standards list additional factors for prosecutors to consider in charging decisions, not just for false reporting. These are important, because many of these factors will often weigh against prosecution in such cases. They include:

  • The extent or absence of harm caused by the offense [of false reporting]
  • The impact of prosecution or non-prosecution on the public welfare
  • Whether the authorized or likely punishment or collateral consequences are disproportionate in relation to the particular offense or offender
  • Any improper conduct by law enforcement
  • Unwarranted or disparate treatment of similarly situated persons
  • Possible influence of any cultural, ethnic, socioeconomic or other improper biases
  • The fair and efficient distribution of limited prosecutorial resources, and
  • Whether the public’s interest in the matter might be appropriately vindicated by available civil, regulatory, administrative, or private remedies (Standard 3-4.4)

It is also important to keep in mind that criminal prosecution is not the only available path. There are other considerations based on the known dynamics of sexual assault cases, such as the fact that many sexual assault reports are either made – or pushed – by third parties other than the victim, particularly by parents or other family members. In addition, many people don’t actually report that they were sexually assaulted; they contact law enforcement because they are unsure of what happened and suspect they may have been sexually assaulted. This is often true for victims who were under the influence of drugs or alcohol at the time, whether consumed voluntarily or administered without their knowledge or consent. Yet it hardly seems appropriate to pursue charges of false reporting against someone who didn’t report a sexual assault in the first place, either because it was reported or pushed by someone else, or because they don’t know what happened, if anything.

For more information on this topic, EVAWI offers a training bulletin and webinar titled: Raped the Jailed, the Risks of Prosecution for Falsely Reporting Sexual Assault. These two resources focus on the scenario where victims summon the courage to report a sexual assault, only to be disbelieved, mistreated, and later charged (often erroneously) with false reporting or associated crimes such as obstruction of justice, interfering with law enforcement, or providing false statements. Additionally, please see our OLTI module: False Reports: Moving Beyond the Issues to Successfully Investigate Sexual Assault.

A Is there guidance available on prosecuting someone for filing a false report?

The Crown Prosecution Service (CPS) published guidance for prosecutors specifically considering a charge of false reporting for sexual assault or domestic violence. This guidance was produced in response to a case where a 28-year old mother of four was prosecuted for recanting a rape report against her violent husband, because he threatened her. In other words, rather than prosecuting her for falsely reporting a rape, she was prosecuted for falsely recanting her report. After being sentenced to eight months in prison, with custody of the children granted to her abusive husband, she was eventually released by the court of appeal which concluded that there should be a “broad measure of compassion for women who had already been victimised” (Bowcott, 2011; cited in Avalos, 2018, p. 820). Public outcry led to the publication of the CPS guidance on prosecution.

The main thrust of the CPS guidance is that charging decisions should be made in two stages. First, there should be an evidence phase, and then a public interest phase. In the first phase of decision-making, the question is whether there is evidence to support the charge being pursued. In this context, this means someone should only be charged with falsely reporting a sexual assault if there is evidence that the sexual assault did not happen, and the information they provide to law enforcement about the crime is false. This is to avoid the scenario where someone is prosecuted for falsely reporting, when there is no evidence to support the charge; it is simply based on stereotypic assumptions and misconceptions about sexual assault crimes and victims.

When there is sufficient evidence to prove that a sexual assault did not occur should decision-making move on to the second stage: the public interest phase. The question at this point is not whether the person can be prosecuted (based on the evidence), but whether they should be prosecuted (to serve community interests).

The CPS guidance particularly highlights the need to consider whether domestic violence may have led to a recantation of the report. The dynamics of recantation are well understood in the context of child abuse and domestic violence. But often these same dynamics are at play in sexual assault cases as well.

The fact that this guidance was published only for sexual assault and domestic violence implies that false reporting for these two crimes is particularly concerning (Avalos, 2018). Perhaps more troubling, Avalos (2018) argues that prosecutors in the UK are not following the guidance, and that it has actually encouraged – rather than discouraged – these prosecutions. While the original intent may have been to avoid harm for victims, the actual impact may be to put police and prosecutors “on notice” that they should be actively seeking to identify false reports and prosecute those making them. In fact, the CPS guidance does not offer a definition of what constitutes a false report. It also fails to acknowledge the fact that actual victims have been prosecuted, or to offer any safeguards to prevent the wrongful prosecution of future victims of sexual assault.

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