Law & the Courts

The Flawed Statistic That’s Helping Poison the Brett Kavanaugh Debate

Sen. Mazie Hirono speaks alongside Sen. Kirsten Gillibrand (right) and alumnae of Holton-Arms, the school Christine Blasey Ford attended, at a Capitol Hill press conference, September 20, 2018. (Yuri Gripas/Reuters)
Only a small fraction of rape claims are proved false, but far more are never pursued, because of insufficient evidence.

It happens every single time there’s a public debate about sex crimes. Advocates for women introduce, in addition to the actual evidence in the case, an additional bit of  “data” that bolsters each and every claim of sexual assault. You see, “studies” show that women rarely file false rape claims. According to many activists, when a woman makes a claim of sexual assault, there is an empirically high probability that she’s telling the truth.

In other words, the very existence of the claim is evidence of the truth of the claim.

Here, for example, is Isaac Stanley-Becker writing in the Washington Post: “No crime is more underreported than rape, according to the National Sexual Violence Resource Center, which estimates that the rate of false reporting is somewhere between 2 and 10 percent.”

This same statistic is cited again and again. And it’s being cited to bolster Christine Blasey Ford’s allegations against Brett Kavanaugh. Here it is at the BBC, in Vogue, and at Raw Story. This Vox report goes even farther,  repeating an incredible and unverifiable claim that “994 out of 1,000 perpetrators walk free.”

I could go on and on. Writing in Vox, Sandra Newman adds a new twist, not only arguing that false rape reports are “quite rare” but that people who make false claims tend to fit a particular profile. Ford’s claim, she says, “sounds nothing like a false rape accusation,” but it “does sound like millions of real attempted rapes.”

If you believe this data, it’s easy to see why people are so outraged when a skeptic says that an alleged victim hasn’t come forward with compelling evidence. After all, it’s a statistical fact. Women are almost always telling the truth. It’s science.

But there’s a problem. A serious problem. Anyone who tells you that we can statistically peg the number of “false” rape claims is peddling a fatally flawed statistic. There’s a simple reason why: Our system does not adjudicate whether a claim is true or false. It adjudicates burdens of proof. Yes, there are some rare instances where an accuser recants, DNA evidence totally exonerates, or a defendant can decisively prove he is innocent, but those cases represent a small fraction of the whole.

If a prosecutor declines to pursue a case, does that mean the alleged victim filed a proven false claim? Very rarely. Instead, it usually means that the prosecutor doesn’t believe he can prove the case beyond a reasonable doubt. If a judge tosses a sexual-harassment lawsuit at summary judgment — or if a civil jury rules against a sexual-harassment plaintiff — does that mean she filed a proven false claim? Very rarely. It instead means that the judge found the allegations insufficient as a matter of law or that the jury found they were not supported by adequate evidence.

These outcomes don’t mean that the allegations are false. They don’t mean that they are true. They simply mean that the evidence didn’t meet necessary thresholds.

For example, in one of the key studies that the National Sexual Violence Resource Center relied on, researchers classified as false only 5.9 percent of cases — but noted that 44.9 percent of cases where classified as “Case did not proceed.” The category was defined as follows:

This classification was applied if the report of a sexual assault did not result in a referral for prosecution or disciplinary action because of insufficient evidence or because the victim withdrew from the process or was unable to identify the perpetrator or because the victim mislabeled the incident (e.g., gave a truthful account of the incident, but the incident did not meet the legal elements of the crime of sexual assault). [Emphasis added.]

There is absolutely no way to know how many of the claims in that broad category were actually true or likely false. We simply know that the relevant decision-makers did not deem them to be provably true. Yet there are legions of people who glide right past the realities of our legal system and instead consider every claim outside those rare total exonerations to be true. According to this view, the justice system fails everyone else.

This creates an artificially inflated sense of justice denied. It creates incentives (on campus, for example) to create a separate justice system for sexual-abuse cases and to minimize due process for the accused. It shapes the way in which we evaluate other human beings, and it leads countless Americans to prejudge a case without careful regard to the evidence. After all, absent specific evidence that individuals are lying, they must be telling the truth. Right?

But the reality is far more complex, and that complex reality demands individual adjudication and individual assessments. Yes, there are some small number of women who fabricate claims out of whole cloth. There are men who are clearly guilty. But between the two poles of certainty, there is an enormous amount of ambiguity and confusion, and it is the task of the finder of fact to weigh the specific evidence in that specific case.

Christine Blasey Ford has made a serious allegation. It merits a serious hearing. But as we consider its merit, there should be no default presumption that anyone is telling the truth.


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