THE TRUTH BEHIND LEGAL DOMINANCE 
FEMINISM�S �TWO PERCENT FALSE 
RAPE CLAIM� FIGURE 

Edward Greer

I. INTRODUCTION 
For at least the last decade, Legal Dominance Feminism (LDF)1 
has been the predominant voice on sexual abuse within legal academia.2 However, many of its empirical claims regarding the sexual 
abuse of women are erroneous.3 Unlike the exemplary scholarship 

* Brookline, Massachusetts; J.D. Yale, 1966. 
1. There is no universally agreed-upon nomenclature for referring to the 
various strands of feminist legal thought, but the school discussed here is oftencalled �dominance theory.� See Kathryn Abrams, Songs of Innocence and Experience: Dominance Feminism in the University, 103 YALE L.J. 1533, 1549 
n.66 (1994) (referring to �the entire range of feminists who have worked theoretically, and often through political practice, to raise consciousness aboutmale sexualization of and aggression against women�). 
2. See Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 COLUM. L. REV. 304, 304 (1995) (�Over the past decade,
dominance feminism has become the ascendant feminist legal theory . . . .�) 
(footnote omitted); see also Deborah J. Merritt & Melanie Putnam, Judges andScholars: Do Courts and Scholarly Journals Cite the Same Law Review Articles?, 71 CHI.-KENT L. REV. 871, 905 tbl.7 (1996) (illustrating that, of articles 
cited from 1991�the last year canvassed�two of the top six are authored bylegal dominance scholars, Professor Catherine A. MacKinnon and Professor 
Kathryn Abrams).
3. See MARTHA S. NUSSBAUM, SEX AND SOCIAL JUSTICE 136 (1999) (stating that it is �difficult to elicit accurate figures on sexual force by survey or interview techniques� and acknowledging Sommers�s critique, infra, of existing 
sex abuse data); DAPHNE PATAI, HETEROPHOBIA: SEXUAL HARASSMENT AND 
THE FUTURE OF FEMINISM 61-62 (1998) (discussing the �absence of serious 
research on the incidence of false or baseless accusations against men, as another result of the gender bias in the [sexual harassment] field�); CHRISTINA 
HOFF SOMMERS, WHO STOLE FEMINISM?: HOW WOMEN HAVE BETRAYED 
WOMEN 225-26 (1994) (stating that gender feminists are pushing forth theiragenda by �alarm[ing] the public with inflated statistics�); Neil Gilbert, The 
947 


948 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

of other feminist academics,4 LDF has in recent years promulgated a 
series of social science myths about rape in the American legal system. Often resting upon a highly problematic methodology, LDF 
significantly misrepresents empirical reality. This Article attempts to 
demonstrate that the LDF discourse on rape is fundamentally flawed. 

At the core of LDF discourse on rape is the proposition that 
�women don�t lie� about sexual abuse.5 The foundation for such a 
bold statement is the claim that false accusations of rape are very 
rare; specifically, its proponents claim that no more than two percent 
of such complaints are invalid.6 In an attempt to shift the laws governing rape to correspond with this purported social reality, LDF advocates shifting the burden of proof from the woman complaining of 
the alleged sexual wrong to the man defending against it.7 As discussed in Part III, changes to the legal definitions of rape and any 
corresponding shifts in the burden of proof are ill-advised and dangerous. 

Unlike those who oppose the LDF program because of its alleged �malebashing,�8 this Article concedes that were it empirically 

Phantom Epidemic of Sexual Assault, 103 PUB. INTEREST 54, 63 (1991) (stating that �estimates of sexual assault calculated by feminist researchers are advocacy numbers, figures that embody less an effort at scientific understandingthan an attempt to persuade the public that a problem is vastly larger thancommonly recognized . . . [and are] . . . derived not through outright deceit butthrough a more subtle process of distortion�); Edward Greer, Tales of Sexual 
Panic in the Legal Academy: The Assault on Reverse Incest Suits, 48 CASE W. 
RES. L. REV. 513 (1998) (showing that incidence of incest based on retrieved 
memory is wildly inflated). 

4. Three excellent feminist articles, Vivian Berger, Man�s Trial, Woman�s 
Tribulation: Rape Cases in the Courtroom, 77 COLUM. L. REV. 1 (1977), Susan Estrich, Rape, 95 YALE L.J. 1087 (1986), and David P. Bryden & Sonja 
Lengnick, Rape in the Criminal Justice System, 87 J. CRIM. L. & 
CRIMINOLOGY 1194 (1997), thoroughly and thoughtfully canvass the centraldoctrinal issues and review much of the extant empirical data. 
5. See infra Part III. 
6. See infra Part II. 
7. See LINDA BROOKOVER BOURQUE, DEFINING RAPE 110 (1989) (statingthat the ultimate objective of rape reform is to shift �the burden of proof fromthe victim to the offender�).
8. See Susan H. Williams & David C. Williams, A Feminist Theory of 
Malebashing, 4 MICH. J. GENDER & L. 35 (1996). If LDF�s empirical datawere true, it would be largely irrelevant that many men find its positions outrageous. 

April 2000] FALSE RAPE CLAIM

true that only two percent of those charged with rape were innocent, 
LDF�s solutions might represent a reasonable public policy. But if, 
as may well be the case, as many as a quarter of the men currently 
accused of rape are actually innocent, then the goals of LDF are truly 
destructive. First, the proportion of wrongful convictions would certainly rise if LDF�s program were fully implemented. Second, as 
demonstrated in Part V, wrongful convictions would fall disproportionately on black youths. 

II. AT THE HEART OF THE TWO PERCENT FALSE CLAIM FIGURE 
A. The Overwhelming Consensus 
One highly respected legal academic, elected by her peers as 
president of the prestigious Association of American Law Schools, 
recently reported that �the overwhelming consensus in . . . research 
relying on government data is that false reports account for only 
about 2 percent of rape complaints.�9 It is indisputably true that, 
largely through the efforts of legal dominance feminists, there now 
exists a consensus among legal academics that only two percent of 
rape complaints are false.10 This purportedly empirical statement is 
ubiquitously repeated in legal literature. Dozens of law review 
articles reiterate that no more than one in fifty rape complaints is 
false.11 This empirical fact, however, is an ideological fabrication.12

 9. DEBORAH L. RHODE, SPEAKING OF SEX: THE DENIAL OF GENDER 
INEQUALITY 125 (1997). 
10. See Bryden & Lengnick, supra note 4, at 1298 (�The conventional wisdom now is that the proportion of false reports is negligible, perhaps as low as 
2% . . . .�). 
11. See JULIE A. ALLISON & LAWRENCE S. WRIGHTSMAN, RAPE: THE 
MISUNDERSTOOD CRIME 205 (1993) (�[T]he actual frequency of false rape reports is estimated to be a low 2% . . . .� (citing KATZ & MAZUR, infra));
SEDELLE KATZ & MARY ANN MAZUR, M.D., UNDERSTANDING THE RAPE 
VICTIM: A SYNTHESIS OF RESEARCH FINDINGS 209 (1979) (citing, inter alia, 
two unpublished studies, one of which is the study cited by Brownmiller (see 
infra notes 40-41 and accompanying text)); see, e.g., Christopher Bopst, RapeShield Laws and Prior False Accusations of Rape: The Need for Meaningful 
Legislative Reform, 24 J. LEGIS. 125, 126 (1998) (referring to �studies thathave shown that the frequency of rape reports proven false [is] approximately 
two percent�) (citing Torrey, infra); Carolyn Stewart Dyer & Nancy R. Hauserman, Electronic Coverage of the Courts: Exceptions to Exposure, 75 GEO. 

950 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

GEO. L.J. 1633, 1687 n.255 (1987) (�Research indicates that about two percent 
of rape reports are false . . . .�) (citing KATZ & MAZUR, supra); Karla Fischer,
Defining the Boundaries of Admissible Expert Psychological Testimony on 
Rape Trauma Syndrome, 1989 U. ILL. L. REV. 691, 698 n.43 (�When researchers replicated these studies using policewomen or trained rape investigators, however, the unfounded rape rate dropped to two or three percent.�) (citing BROWNMILLER, infra note 34); Louise F. Fitzgerald, Science v. Myth: The 
Failure of Reason in the Clarence Thomas Hearings, 65 S. CAL. L. REV. 1399, 
1404 (1992) (�[R]eliable statistics demonstrate that approximately one to twopercent of rape charges are found to be false . . . .�); Deborah Gartzke Goolsby,
Using Mediation in Cases of Simple Rape, 47 WASH. & LEE L. REV. 1183, 
1194 n.112 (1990) (�Authorities estimate false reports of rape . . . at about twopercent.�) (citing BROWNMILLER, infra note 34); W.H. Hallock, The Violence 
Against Women Act: Civil Rights for Sexual Assault Victims, 68 IND. L.J. 577, 
596 n.134 (1993) (favorably quoting that �[e]stimates indicate that only 2 percent of all rape reports prove to be false�) (citing Torrey, infra, at 1028); Kathy 
Mack, Continuing Barriers to Women�s Credibility: A Feminist Perspective on 
the Proof Process, 4 CRIM. L.F. 327, 336 (1993) (�Empirical studies have generally shown a rate of false reports for [rape] of less than 2 percent . . . .�) (citing Julie Taylor, infra); A. Thomas Morris, The Empirical, Historical and Legal Case Against the Cautionary Instruction: A Call for Legislative Reform, 
1988 DUKE L.J. 154, 166 (�A Rape Analysis Squad chaired by female police 
officers discovered that only two percent of the rape charges brought werefalse . . . .�) (citing BROWNMILLER, infra note 34); Wendy J. Murphy, Minimizing the Likelihood of Discovery of Victims� Counseling Records and Other 
Personal Information in Criminal Cases: Massachusetts Gives a Nod to a 
Constitutional Right to Confidentiality, 32 NEW ENG. L. REV. 983, 1006-07 

n.120 (1998) (�In fact, the false accusation rate in rape cases is between only 
one to two percent.�) (citing Taylor, infra, and Torrey, infra); John E.B. Myers 
et al., Expert Testimony in Child Sexual Abuse Litigation, 68 NEB. L. REV. 1, 
112 (1989) (�Katz and Mazur studied adult rape victims, and concluded thattwo percent of allegations were false.�) (citing KATZ & MAZUR, supra, at 214); 
Roberta J. O�Neale, Court Ordered Psychiatric Examination of a Rape Victimin a Criminal Rape Prosecution � or How Many Times Must a Woman Be 
Raped?, 18 SANTA CLARA L. REV. 119, 141 (1978) (�The commander of the 
Rape Analysis Squad in New York City reported an estimated unfounding rate 
of 2% . . . .�); Elizabeth A. Pendo, Recognizing Violence Against Women: 
Gender and the Hate Crimes Statistics Act, 17 HARV. WOMEN�S L.J. 157, 171 
(1994) (The estimates are �that only two percent of all rape reports prove to befalse.�) (citing Torrey, infra); Beverly J. Ross, Does Diversity in Legal Scholarship Make a Difference?: A Look at the Law of Rape, 100 DICK. L. REV. 
795, 812 (1996) (�New York City had similar statistics until the city began requiring all reports on alleged rapes to be taken by female police officers. The 
rate of unfounded rape charges then dropped to two percent.�) (citing KATZ & 
MAZUR, supra, at 207-09); Julie Taylor, Rape and Women�s Credibility: Problems of Recantations and False Accusations Echoed in the Case of Cathleen 
Crowell Webb and Gary Dotson, 10 HARV. WOMEN�S L.J. 59, 97 (1987); Mor

April 2000] FALSE RAPE CLAIM

B. The Problems with Determining the Percentage of 
False Rape Claims 
As far as can be ascertained, no study has ever been published 
which sets forth an evidentiary basis for the �two percent false rape 
complaint� thesis.13 �Measuring false allegations is all the more difficult since policies on unfounded criminal complaints differ from 
one jurisdiction to another, resulting in very different numbers.�14 

The basic problem with accurately ascertaining the percentage 
of wrongful accusations is that the overwhelming majority of rape 
cases result in plea bargains, a �black box� in which there is neither 

rison Torrey, When Will We Be Believed? Rape Myths and the Idea of a FairTrial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013, 1028 (1991) (�Estimates indicate that only two percent of all rape reports prove to be false . . . .�); 
James A. Vaught & Margaret Henning, Admissibility of a Rape Victim�s Prior 
Sexual Conduct in Texas: A Contemporary Review and Analysis, 23 ST. 
MARY�S L.J. 893, 904 & n.56 (1992) (�[S]tatistical data reveals that a low percentage of rapes reported are false.�) (citing Torrey, supra, at 1028); Margaret 

A. Clemens, Note, Elimination of the Resistance Requirement and Other RapeLaw Reforms: The New York Experience, 47 ALB. L. REV. 871, 883 (1983) 
(�[O]nly 2% of all reported rapes prove to be false . . . .�) (citing 
BROWNMILLER, infra note 34, at 386-87); Lisa R. Eskow, Note, The Ultimate 
Weapon?: Demythologizing Spousal Rape and Reconceptualizing Its Prosecution, 48 STAN. L. REV. 677, 694 (1996) (�[S]tudies indicate that the statistic for 
false rape reports is only 2 percent . . . .�) (citing Eloise Salholz, Sex Crimes: 
Women On Trial, NEWSWEEK, Dec. 16, 1991, at 22) (quoting Torrey, supra, at 
1028); Julie F. Kay, Note, If Men Could Get Pregnant: An Equal Protection 
Model for Federal Funding of Abortion Under a National Health Care Plan, 
60 BROOK. L. REV. 349, 356 n.23 (1994) (�Other researchers put the figure atonly 2 percent.�) (quoting HELEN BENEDICT, infra note 57, at 18); Catherine L. 
Kello, Note, Rape Shield Laws�Is It Time for Reinforcement?, 21 U. MICH. 
J.L. REFORM 317, 344 (1987) (�Studies have demonstrated that the rate of falserape reports filed corresponds to . . . two percent.�) (citing BROWNMILLER, infra note 34, at 387); Linda Robayo, Note, The Glenn Ridge Trial: New Jersey�s 
Cue to Amend Its Rape Shield Statute, 19 SETON HALL LEGIS. J. 272, 293 
n.148 (1994) (�[L]ess than two percent of rape complaints are false.�) (discussing Mack, supra, at 336); Jaye Sitton, Comment, Old Wine in New Bottles: The 
�Marital� Rape Allowance, 72 N.C. L. REV. 261, 267 n.39 (1993) (�Overall,
the number of false rape charges has been estimated at two percent . . . .�) (citing BROWNMILLER, infra note 34, at 387). 
12. See infra Part IV. 
13. For a discussion tracing the source of the problematic �two percent�
figure, see infra Part II.D. 
14. CATHY YOUNG, CEASEFIRE!: WHY WOMEN AND MEN MUST JOIN 
FORCES TO ACHIEVE TRUE EQUALITY 150 (1999). 

952 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

adversarial process, jury fact-finding, appellate review, nor even a 
record for scholarly analysis. There are numerous reasons why both 
innocent and guilty defendants accept plea bargains, including avoiding the risks of going to trial.15 There is thus no firm evidence that 
the plea bargaining process differentiates between innocence and 
guilt any more accurately than trials. Whether by trial or by plea-
bargaining, roughly half of accused rapists are convicted.16 Even if 
we assume arguendo that all those convicted are indeed guilty, and 
that a full two-thirds of those acquitted at trial were also guilty, we 
would still wind up with a situation in which one-sixth of those actually tried are really innocent. 

C. Indirect Measures of Wrongful Rape Accusations 
Despite the difficulties in measuring wrongful accusations, there 
is indirect data available that is highly suggestive that far more than 
two percent of rape accusations are false. In a significant fraction of 
instances, the accusers recant their charges;17 in others, where no 
formal recantation occurs but where rape may have occurred, there 
are good reasons to believe that the accusation must nevertheless be 
wrong about the identity of the assailant. One illustration of this 
phenomenon are the instances where DNA testing has determined 
that the man actually imprisoned for rape after trial was not the individual the victim claimed was the assailant.18 

15. See Richard Birke, Reconciling Loss Aversion and Guilty Pleas, 1999 
UTAH L. REV. 205, 207 (stating that in the vast majority of cases, defendants 
accept plea bargains rather than taking a risk and going to trial). 
16. See LAWRENCE A. GREENFELD, U.S. DEPT. OF JUSTICE, SEX OFFENSES 
AND OFFENDERS: AN ANALYSIS OF DATA ON RAPE AND SEXUAL ASSAULT 12, 
fig.12 (1997).
17. Empirical data on the frequency of recantations is sparse, but suggeststhat recantations are not uncommon. See Eugene J. Kanin, False Rape Allegations, 23 ARCHIVES OF SEXUAL BEHAVIOR 81, 83-85 (1994) (stating that onepolice department�s records indicate that 41% of victims expressly recanted,
despite warnings that if they did so they might be criminally prosecuted for 
making a false report); see YOUNG, supra note 14, 150-51 (citing to reporters�inquiries where large fractions of women stated they had lied). 
18. See, e.g., Bob Herbert, In America: Two Victims, N.Y. TIMES, July 8, 
1999, at A25 (describing a case where conclusive DNA evidence was used toseek exoneration of a man who has already spent 17 years in prison for rape);
see also Bryden & Lengnick, supra note 4, at 1309 (summarizing study in 

April 2000] FALSE RAPE CLAIM

Moreover, commencing in 1989 in cases of rape and rape-
murder where there has already been either an arrest or an indictment, the FBI has conducted large numbers of DNA tests19 �to confirm or exclude the person. In 25 percent of the cases where they can 
get a result, they excluded the primary suspect.�20 As several of the 
weakest cases have already been screened out, either by the police 
determining that the claim is unfounded or by the prosecution deciding not to go forward,21 this fraction may indicate the lower boundary of formal misidentifications of the culprit. 

Furthermore, there is no plausible reason to believe that almost 
all complaints of rape are true. On the contrary, aside from the limited probative empirical evidence on the issue, there are a number of 
good reasons to think that a significant fraction of rape complaints, 
far in excess of two percent, are false. By way of comparison, there 
is an elaborate body of literature and numerous examples suggesting 
that a significant number�way beyond the two percent range�of 
capital murder convictions are of innocent men.22 Why should 
criminal trials involving sexual assaults on women be more accurately discriminating than those involving capital homicide? If an 
assertion that one out of four or five rape claims is false sounds 
counterintuitive to the legal academic ear, then this further demonstrates that the two percent false claim proposition is now embedded 

Philadelphia hospital where the evidence suggested that 13% of rape complaints were false). 

19. FBI and private crime laboratories combined have performed 18,000 
criminal DNA tests. See BARRY SCHECK, PETER NEUFELD & JIM DWYER, 
ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES 
FROM THE WRONGLY CONVICTED xv (2000). 
20. Bob Herbert, How Many Innocent Prisoners?, N.Y. TIMES, July 18, 
1999, � 4, at 17 (quoting Professor Barry Scheck, Director of the Innocence 
Project legal clinic at Benjamin N. Cardozo School of Law). 
21. See id. (paraphrasing Professor Barry Scheck). 
22. See, e.g., Andrew Bluth, Illinois Man Is Finally Cleared in Two Murders, N.Y. TIMES, Mar. 12, 1999, at A20 (�Since the death penalty was reinstated in Illinois in 1977, 11 inmates have been executed and 11 others have 
been released after new evidence raised questions about their guilt . . . .�); DirkJohnson, 12th Death Row Inmate in Illinois is Cleared, N.Y. TIMES, May 19, 
1999, at A14 (citing another death row inmate who was exonerated and where 
after the conviction was overturned, prosecutors declined to bring a new trial). 

954 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

in our commonsense notion of reality.23 This commonsense notion, 
however, does not resolve the underlying empirical question of 
whether a significant minority of women who bring rape charges do 
so erroneously. 

D. The Two Percent False Claim Figure Is Unreliable 
At the outset, it becomes apparent that LDF�s two percent false 
claim figure is highly problematic. An examination of its genesis reveals that the two percent false claim figure is an illusion that sprang 
from a mimeoed handout in Susan Brownmiller�s file.24 To support 
this proposition, one needs to engage in a sort of academic archaeology and consider one of the main exponents of the two percent figure. For instance, Professor Morrison Torrey writes, �Estimates indicate that only 2 percent of all rape reports prove to be false, a rate 
comparable to the false report rate for other crimes. Unfortunately, 
reports of a high proportion of �unfounded� rape complaints may 
have contributed to this myth that women falsely cry rape.�25 

Professor Torrey begins her law review article by explaining 
that in preparation for her study, she �became familiar with the 
enormous amount of empirical research in the area of rape myths and 
their power.�26 Then Professor Torrey cites a main source and two 
back-up sources for her two percent figure: an article in The Rape 
Victim,27 a law review article by Roberta J. O�Neale,28 and another 
law review article by Margaret A. Clemens.29 

The Rape Victim article reads in relevant part: �[S]tatistics reveal that the percentage of unfounded accusations in the area of rape 
is about two percent, according to Lt. Julia Tucker, former Com

23. See Bryden & Lengnick, supra note 4, at 1310 (empirical study concluding that two-fifths of rape claims are false is �perhaps the most strikingand counter-intuitive in the history of rape scholarship�).
24. See infra note 43 and accompanying text. 
25. Torrey, supra note 11, at 1028 (footnote omitted). 
26. Id. at 1013 n.1. 
27. Patricia A. Hartwig & Georgette Bennett Sandler, Rape Victims: Reasons, Responses and Reforms, in THE RAPE VICTIM 13 (Deanna R. Nass ed., 
1977). 
28. O�Neale, supra note 11. 
29. Clemens, supra note 11. 

April 2000] FALSE RAPE CLAIM

manding Officer of the New York City Sex Crimes Analysis Unit. 
This is approximately the same percentage of unfounded charges 
which are found in other felonies.�30 

The second source, Roberta J. O�Neale�s article, reads: �The 
commander of the Rape Analysis Squad in New York City reported 
an estimated unfounding rate of 2%, no more than the rate for other 
crimes.�31 In turn, for this sentence Ms. O�Neale cites to a student 
law review comment,32 which itself relies upon an unpublished grant 
application from the Portland, Oregon, district attorney�s office.33 
Because O�Neale�s language tracks that of Ms. Brownmiller�s 
Against Our Will34 and relates to New York City rather than Portland, it is quite possible that citation to Ms. Brownmiller was omitted 
by scrivener�s error. Alternatively, because the cited grant application preceded publication of Ms. Brownmiller�s book, perhaps the 
district attorney�s office relied upon the speech that was Ms. 
Brownmiller�s source35 or upon Grace Lichtenstein�s article discussed infra.36 

Finally, the law review article by Margaret Clemens, the third 
source cited by Torrey as the basis for her use of the two percent figure, asserts: �Estimates indicate that only 2% of all reported rapes 
prove to be false, which is comparable to the rate for false reports of 
other crimes.�37 Only one source is cited by Ms. Clemens for her 
two percent figure�Brownmiller�s Against Our Will.38 All three of 
Professor Torrey�s sources turn out to be derived from the same single source. Moreover, as best as this author could ascertain, without 

30. Hartwig & Sandler, supra note 27, at 13. 
31. O�Neale, supra note 11, at 141. 
32. Sally Ellis Mathiasen, Comment, The Rape Victim: A Victim of Society 
and the Law, 11 WILLAMETTE L.J. 36, 49 & n.81 (1974). 
33. Portland Research, Advocacy, Prevention, Education (R.A.P.E.) Project, Law Enforcement Assistance Administration Grant Application, at 15 
(submitted by the Multnomah County District Attorney, Portland, Oregon). 
34. SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 
410 (1976). 
35. See infra text accompanying notes 40-44. 
36. See infra text accompanying notes 48-51. 
37. Clemens, supra note 11, at 883. 
38. See id. at 883 n.61. 

956 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

exception every scholarly or semi-scholarly source that utilizes the 
two percent false claim proposition can ultimately be traced back to 
Against Our Will. 

Despite the plethora of pyramided citations, it turns out that 
there is one, and only one, underlying source�feminist publicist 
Susan Brownmiller�s interpretation of some data, now a quarter-
century old, of unknown provenance from a single police department 
unit. There are no other published studies that this author could find. 
All of the sources cited at the outset of this Article39 trace back to 
Ms. Brownmiller. 

Susan Brownmiller set forth the following in her book: �When 
New York City created a special Rape Analysis Squad commanded 
by policewomen, the female police officers found that only 2 percent 
of all rape complaints were false�about the same false-report rate 
that is usual for other kinds of felonies.�40 When one looks at her 
�Source Notes� for this proposition, she states it to be: �NYC Rape 
Analysis Squad found only 2 percent of complaints were false: 
�Remarks of Lawrence H. Cooke, Appellate Division Justice, Before 
the Association of the Bar of the City of New York,� Jan. 16, 1974 
(mimeo), p.6.�41 

Ms. Brownmiller, who is a very meticulous and organized 
writer,42 very kindly on my request located and sent me a copy of 
this xeroxed speech.43 In relevant part, the judge�s speech reads: �In 
fact, according to the Commander of New York City�s Rape Analysis Squad, only about 2 percent of all rape and related sex charges are 
determined to be false and this is about the same as the rate of false 
charges of other felonies.�44 

39. See supra note 12. 
40. BROWNMILLER, supra note 34, at 410. 
41. Id. at 505. 
42. In her Tales of the Lavender Menace: A Memoir of Liberation, Karla 
Jay observes that at the time of writing Against Our Will, when she and Ms. 
Brownmiller were members of the feminist group Media Women, the latter 
was already reputed to be �[a] meticulous researcher.� KARLA JAY, TALES OF 
THE LAVENDER MENACE: A MEMOIR OF LIBERATION 113-14 (1999). 
43. Remarks of Lawrence H. Cooke, Appellate Division Justice, Before theAssociation of the Bar of the City of New York, Jan. 16, 1974 (on file with author).
44. Id. 

April 2000] FALSE RAPE CLAIM

These judicial remarks do not suffice to determine whether or 
not there was an underlying written report, although the locution 
used is suggestive of being based on a quotation from a newspaper 
article rather than a formally written text. When I contacted the 
then-judge�s law clerk, and he made inquiry of all those directly 
involved in the preparation of Judge Cooke�s speech, their best recollections are that they did not rely upon any report but cannot remember precisely how they did obtain the two percent figure.45 Of 
course, it remains possible that some such report was generated, but 
as of this date, no one is able to adduce it.46 Without the document, 
one cannot analyze the underlying data, the protocol used in evaluating it, or even whether it met minimum criteria of accuracy.47 

A few weeks after the delivery of this speech, a New York Times 
reporter, Grace Lichtenstein, published a piece on that group in the 
New York Times Magazine entitled �Rape Squad.� 48 The article discussed the very brief tenure of Lieutenant Julie Tucker, and how the 
squad, exclusively composed of police, not social scientists, was 
�primarily a statistic-gathering operation.�49 Although all of this 
squad�s police �members . . . [were] trained in judo,� they were not, 
as far as can be ascertained, trained in statistical analysis.50 Toward 
the end of her article, Ms. Lichtenstein states that even under the 
then-newly reformed New York state rape statute, convictions were 
difficult to achieve �despite studies showing that the percentages of 
rape complaints later discovered to be unfounded was only 2 percent�the same as for all unfounded felonies.�51 

45. Telephone conversations of author Mar. 3 & 7, 2000. 
46. In an e-mail dated June 25, 1995, Ms. Brownmiller objects to criticism 
of Judge Cooke�s speech as her source for Against Our Will but does not provide any citation to, or even contend that she had ever read or seen a copy. See 
Susan Brownmiller Replies (visited Mar. 27, 2000) . 
47. See, e.g., STATISTICAL STRATEGIES FOR SMALL SAMPLE RESEARCH 
(Rick Hoyle ed., 1999) (discussing various techniques for effectively conducting small-sample research and analysis). 
48. Grace Lichtenstein, Rape Squad, N.Y. TIMES MAG., Mar. 3, 1974, at 
10. 
49. Id. at 61. 
50. The Cities: The Rape Wave, NEWSWEEK, Jan. 29, 1973, at 59. 
51. Lichtenstein, supra note 48, at 65. 

958 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

It may well be that both Judge Cooke and Ms. Lichtenstein� 
followed by her friend52 Ms. Brownmiller in her book�relied on the 
same unknown original source advanced by someone in the Rape 
Squad. Whether that original source was a press release, a more 
formal report, or simply an oral statement to a reporter, remains lost 
in antiquity. Here the trail currently ends. 

E. The Unreliable Figures of the Dominance Feminists Enter the 
Academic Mainstream 
Turning back to Professor Deborah Rhode, her belief that �two 
percent false = other felonies� is a consensus fact53 that more than 
likely comes from having perused numerous dominant feminist articles and books which endlessly recycle it from its original source� 
Susan Brownmiller�s Against Our Will. Professor Rhode tells us that 
her manuscript was read by a baker�s dozen of law professors and 
that her editor at Harvard University Press �prepared this manuscript 
with painstaking care.�54 Apparently none of them challenged the 
two percent false claim, resulting in a sort of second-order consensus. Professor Rhode in her scholarly notes55 advanced three sources 
for the two percent proposition: a newspaper article by reporter 
Candy Cooper,56 a book,57 and a law review article.58 Each source 
will be examined in turn. 

Ms. Cooper�s initial article appeared on September 16, 1990. 

52. See SUSAN BROWNMILLER, IN OUR TIME: MEMOIR OF A REVOLUTION 
88 (1999) (referring to Grace Lichtenstein as �my neighbor and friend�); see 
also JAY, supra note 42, at 115 (�We also called in a few �friendly� members 
of the press, including Grace Lichtenstein of the New York Times . . . .�). 
53. See RHODE, supra note 9 and accompanying text. 
54. See id. at 322. 
55. See id. at 295 n.93. 
56. Candy J. Cooper, Nowhere to Turn for Rape Victims: High Proportion 
of Cases Tossed Aside by Oakland Police, S.F. EXAMINER, Sept. 16, 1990, at 
A1. 
57. HELEN BENEDICT, VIRGIN OR VAMP: HOW THE PRESS COVERS SEX 
CRIMES 18 (1992); cf. Peggy Reeves Sanday, Rape Discourse in Press Coverage of Sex Crimes, 91 MICH. L. REV. 1414 (1993) (reviewing Virgin or Vamp 
and generally supporting the book�s propositions). 
58. Lynn Hecht Schafran, Writing and Reading About Rape: A Primer, 66 
ST. JOHN�S L. REV. 979, 1013 (1993). 

April 2000] FALSE RAPE CLAIM

Nowhere, either in this article or in its two accompanying sidebars, is 
there anything on the proportion of rape claims (or any other felony) 
that are false. Nor is there anything from which one could infer what 
proportion of rape charges is false. Her second article, dated Feb-
ruary 1, 1991, reports that the Oakland police, in response to her 
prior article, re-categorized 184 of 203 previously �unfounded� rape 
reports.59 In addition to reexamining the 203 original cases, the Oakland police added an additional 29 as a spot-check.60 Of these 232 
cases, seventy-six victims could not be located, thirty-six did not 
want to cooperate, and eighty-five did not return phone calls or letters because they had either given bad addresses or moved without 
leaving a forwarding address.61 Of those who were located, only 
twelve of the victims cooperated with renewed police investigation, 
and only two cases were presented to the district attorney; none has 
been prosecuted.62 Again, nowhere in these numbers can one find 
support for a two percent false rape claim figure. 

Ms. Benedict�s Virgin or Vamp, the second source, reads: �The 
tendency of women to lie about rape is vastly exaggerated in popular 
opinion. The FBI and other researchers find that false reports of rape 
run at 2 percent, the same as those for other crimes.�63 The authority 
for this proposition was the following quote from Newsweek: �Research suggests that the notion that women invent rape charges is statistically unfounded and psychologically implausible. DePaul University law professor Morrison Torrey says about 2 percent of rape 
reports are false�approximately the same percentage as other 
crimes.�64 

Torrey, as shown above, was simply based on Brownmiller.65 

Attorney Schafran�s law review article, the third source, makes a 
number of valuable and useful observations about rape. On the issue 

59. See Candy J. Cooper, Oakland Admits 184 Rapes Ignored, S.F. 
EXAMINER, Feb. 1, 1991, at A1. 
60. See id. 
61. See id. 
62. See id. 
63. BENEDICT, supra note 57, at 18. 
64. Eloise Salholz, Sex Crimes: Women on Trial, NEWSWEEK, Dec. 16, 
1991, at 23. 
65. See supra notes 25-38 and accompanying text. 

960 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

at hand, however, she avers: �But on a statistical basis [false rape allegations] appear to be infrequent, even less frequent than false 
allegations in other types of cases.�66 In addition to relying on law 
review articles by Morrison Torrey and Deborah Goolsby,67 Ms. 
Schafran cites to another scholarly source�a third law review article 
by Karla Fischer.68 

The cited pages in Fischer�s article do not address the issue at 
hand; but further in her text, one encounters the following footnote: 
�When researchers replicated these studies using policewomen or 
trained rape investigators, however, the unfounded rape rate dropped 
to two or three percent. Id.�69 No one who has read this far will be 
surprised to discover that the prior citation in the Fischer article to 
which the �Id.� refers is none other than Brownmiller�s Against Our 
Will.70 

Transmuted by repetition in one feminist article after another 
until its problematic origin is lost, these multiple repetitions led the 
last writer in the chain, the President of the AALS, Professor Deborah L. Rhode, to write of a research �consensus� in academia based 
on one single unpublished speech Susan Brownmiller quoted a quarter of century ago. 

III. THE MYTH THAT �WOMEN DON�T LIE ABOUT RAPE� 
A. The �Second Rape� Disincentive 
LDF literature advances the proposition that �women don�t lie 
about rape� as an axiomatic substrate to their proposed policy 
changes fueled by the purported two percent false claim figure.71 As

 66. Schafran, supra note 58, at 1012 (italics omitted). 
67. Deborah Goolsby avers that �false reporting rates for rape are no higher 
than for any other crime.� Goolsby, supra note 11, at 1194. In Professor 
Goolsby�s footnote, only one source is cited for the two percent false rapeclaim figure: Against Our Will. See id. at 1194 n.112. 
68. See Schafran, supra note 58, at 1012 n.133 (citing Fischer, supra note 
11, at 691-92). 
69. Fischer, supra note 11, at 698 n.43. 
70. See id. 
71. See RHODE, supra note 9; see also Part II (discussing the lack of an evidentiary basis and its consequences). 

April 2000] FALSE RAPE CLAIM

further justification, LDF proclaims that women are deterred from 
making false rape charges because, inter alia, rape complainants are 
subjected to a harrowing �second rape.�72 Simultaneously, LDF 
wants alterations in the processing of rape charges by reducing the 
sanctions, costs and trauma�i.e., the �second rape��that face 
women who come forward and press rape charges. However, LDF�s 
essentially static view of false claims simply does not take into account that as the sanctions and costs of bringing rape charges are reduced, an individual�s calculation of whether to deliberately make a 
wrongful charge correspondingly shifts. LDF exponents do not acknowledge that if the �second rape� disappears, so too does the very 
disincentive which is advanced as the main reason underlying the existence of few false reports. As Daphne Patai and Noretta Koertge 
put it: 

The greater feminism�s success in raising our feelings of 
moral outrage at sexual harassment . . . the more likely it is 
that members of a protected group will find it in their interest to make a false or frivolous accusation. In a rape trial, 
for example, it is now ironic that, as we�properly� 
destigmatize the woman accuser, we simultaneously undermine the old feminist argument that the process of accusing someone of rape is so self-vilifying that no woman 
would ever intentionally make a false accusation.73 

B. Other Lies in the Legal System 
The assertion that women don�t lie about rape also rings untrue 
because men and women often lie about everything else in the legal 

72. �Second rape� refers to the trauma experienced by rape victims duringsubsequent reporting and court proceedings. See, e.g., Mary Leonard, Just 
Keep Quiet, BOSTON GLOBE, Mar. 22, 1998, at E1, E5 (summarizing new understanding among some feminist psychologists that, for victims of sexual harassment in the workplace, the adverse emotional impact of entering the litigation sphere �is as damaging, if not more damaging, than the acts of misconductthemselves�) (quoting Louise Fitzgerald, Professor, University of Illinois). 
73. DAPHNE PATAI & NORETTA KOERTGE, PROFESSING FEMINISM: 
CAUTIONARY TALES FROM THE STRANGE WORLD OF WOMEN�S STUDIES 80 
(1994). 

962 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

system.74 For complaints of rape advanced against present or previous intimates, misreporting may well be closer to what commonly 
occurs in civil family proceedings involving contested issues of child 
custody.75 As the penalties for false allegations in the child custody 
setting appear both more serious and more likely to be imposed than 
the penalties for false rape charges,76 one should suspect that mothers 
would be less likely to lie in child custody situations. And as such 
false charges, whether given credence or not, might harm the couple�s child psychologically, we would again expect that proportionately fewer women would be willing to advance deliberately false 
rape claims. However, it may well be that as much as twenty percent 
of sexual abuse claims may be false in divorce settings with respect 
to children.77 If this is true, then it is not implausible that at least 
twenty percent of non-stranger rape claims are false. 

IV. TRANSFORMING RAPE INTO A STRICT LIABILITY OFFENSE 
The veracity of the two percent false claim figure itself is less of 
a concern than the social policy changes that are advocated based on 
this illusory figure. Currently, about half of those accused of felony 
rape are convicted, whether through the trial or by plea bargaining.78 
However, according to LDF, since only two percent of rape claims 
are false, this conviction rate is radically insufficient to achieve jus

74. See Robin L. West, The Difference in Women�s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 WIS. WOMEN�S L.J. 81, 
127 (1987) (saying that sex is perhaps the �one thing women lie about more 
than any other�).
75. See, e.g., Cynthia Grant Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 HARV. L. 
REV. 549, 578 n.178 (1996) (showing that in child custody battles involvingallegations of sexual abuse, as many as one-seventh are malicious, and up toone-third are unlikely); John E.B. Myers, The Child Sexual Abuse Literature: 
A Call for Greater Objectivity, 88 MICH. L. REV. 1709, 1726 (1990) (�[T]he 
most methodologically rigorous studies indicate that in divorce litigation the 
incidence of fabricated allegations of child sexual abuse may be as high astwenty percent.�). 
76. See Mary E. Becker, The Abuse Excuse and Patriarchal Narratives, 92 
NW. U. L. REV. 1459, 1463-65 (1998) (stating that if the accuser in custodyproceeding is disbelieved, she may lose custody). 
77. See Myers, supra note 75, at 1726. 
78. See GREENFELD, supra note 16, at 12 fig.12. 

April 2000] FALSE RAPE CLAIM

tice for women within the legal system. Thus, because of its axiom 
that virtually all complaints of rape are legitimate, a central goal of 
LDF is to reform the legal definition of �consent�79 in rape settings 
to become more favorable to women,80 thereby making conviction at 
trial easier to accomplish.81 A higher conviction rate can be accomplished by making mens rea irrelevant to the crime, thereby redefining rape as a new breed of strict liability offense. As Professor Susan 
Estrich observes, �To refuse to inquire in mens rea . . . [may turn] 
rape into a strict liability offense where, in the absence of consent, 
the man is guilty of rape regardless of whether he (or anyone) would 
have recognized nonconsent in the circumstances.�82 

Although LDF does not expressly contend that rape generally 
ought to be transformed into a strict liability offense, it is hard to 
avoid observing that the LDF perspective is close. At the extreme, 
the felony would be redefined such that its elements reduce to sexual 
intercourse plus retroactive nonconsent. 

LDF proponents have asserted that �incidents in which the victim herself has not labeled the experience a rape� can be validly 
criminalized.83 Where the victim did not at the time of the event label being compelled at knifepoint to submit sexually as �rape� because she was not aware that she was within the protected ambit of 

79. See McKinnon, Feminism, Marxism, Method, and the State: Toward 
Feminist Jurisprudence, 8 SIGNS 635, 653-55 (1983) (suggesting that consent 
should be an affirmative defense); see also Robin D. Wiener, Comment, Shifting the Communication Burden: A Meaningful Consent Standard in Rape, 6 
HARV. WOMEN�S L.J. 143, 155-57 (1983). 
80. As Professor Martha Minow observes, however, a more variegated position than that taken by the LDF is necessary �because of the basic feministinsight into the variety of women�s positions and interests. Some women are 
the mothers, daughters, or sisters of men facing retributive justice, even assome women are the victims of male violence . . . .� Martha Minow, Between 
Vengeance and Forgiveness: Feminist Responses to Violent Injustice, 32 NEW 
ENG. L. REV. 967, 972 (1998). 
81. See STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF 
INTIMIDATION AND THE FAILURE OF LAW 134-35 (1998) (arguing against 
physical force requirement in difficult-to-prove quid pro quo sexual harassment cases). 
82. Estrich, supra note 4, at 1098. 
83. Lani Anne Remick, Read Her Lips: An Argument for a Verbal Consent 
Standard in Rape, 141 U. PA. L. REV. 1103, 1142 (1993). 

964 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

the law, e.g., a married woman who does not know that the marital 
rape exemption has been repealed in her jurisdiction, prosecution is 
unexceptionable. 

The difficulty arises, however, when the putative victim�s �nonconsent� is presumed�for example, because she was intoxicated. 
Some LDF proponents contend that women are incapable of consenting to sexual activity whenever they are under the influence of alcohol.84 Consider, for example, a setting in which both parties have 
become voluntarily intoxicated. In the course of sexual activity, the 
man may reasonably believe that the woman wants to engage in intercourse in light of her words and deeds.85 If afterwards the woman 
comes to think and contend that she did not consent to this sexual 
contact, most people would oppose finding the man�s behavior felonious. A number of LDF proponents, however, would categorize 
this as rape. Such a position amounts to transforming rape into a 
strict liability offense. 

A second type of serious problem ensues from the way in which 
LDF seeks to reconstruct the legal import of the woman�s consent. If 
a man brings forth a gun or knife, regardless of whether the woman 
then verbally agrees to intercourse, her behavior would presumably 
be that of someone under duress. Hence, the man�s guilt would be a 
proper inference in the factfinder�s determination. Problems arise, 
however, when the situation is consistent with two opposite meanings, e.g., no weapon, but the pair are alone in the woods. Perhaps 
the silent woman is afraid to object; perhaps her consent is unvoiced. 
Many of the cases that LDF points to as horrible miscarriages of justice fall into this latter scenario.86 However, such a characterization 
of these cases rests on the assumption that the woman�s complaint is 
valid. Absent this unsupported assumption, one could readily infer 
either consent or non-consent. Provided the man�s testimony is plau

84. See, e.g., Ruth Rosen, Curb Abuse of Power, Not Sex, L.A. TIMES, Aug.
17, 1993, at B7 (discussing university policy whereby anyone who drinks alcohol or takes drugs is viewed as incapable of giving consent).
85. As a practical matter, neither party�s inner psychic state may be clear 
nor may the acts of each resolve uncertainties in the other�s interpretations. 
86. See Mustafa K. Kasubhai, Destabilizing Power in Rape: Why Consent 
Theory in Rape Law Is Turned on Its Head, 11 WIS. WOMEN�S L.J. 37, 53-58 
(1996). 

April 2000] FALSE RAPE CLAIM

sible, however, it is difficult without further evidence, such as how 
they got there or their prior amorous interactions, to determine 
whether there is consent, much less to infer guilt.87 This is the underlying reason that the elements of rape are defined so narrowly� 
e.g., requiring force.88 

Once one removes these parameters, the definition of the felony 
becomes wildly over-inclusive. For instance, if consent required express verbal speech acts on the part of the woman, there would 
probably be hundreds of times as many acts defined as rape as there 
are today. Only after a cultural change in which such verbal statements become effectively universal would it make sense to use 
silence�or even rhetorical �no�s�89�as one per se element of the 
felony. 

Many who adopt an LDF approach insist, however, that there 
should be a change in the legal rules governing rape such that in the 
absence of a woman�s verbal statement of assent, rape has occurred.90 There is both a stronger and a weaker version of this proposed reform. 

In the stronger version, any act of intercourse that occurs in the 
absence of an express oral consent is rape.91 Most within the LDF do 
not seriously dispute that currently a large portion of women fail to 
meet this proposed standard of behavior; and they probably even 
agree that it would be unjust currently to imprison the male sexual 
partners. Exponents of the stronger version argue, however, that 

87. See Katharine K. Baker, Sex, Rape, and Shame, 79 B.U. L. REV. 663, 
690-93 (1999). 
88. See, e.g., OHIO REV. CODE ANN. � 2907.01(A)(1)(a) (Anderson 1999). 
89. Empirical evidence indicates that very large numbers of women say 
�no� when they mean �yes.� See SCHULHOFER, supra note 81, at 59-68 (citing 
data sources). Even today, few courts will consider verbal non-consent sufficient to convict a man of rape unless there is evidence that (1) the woman resisted with sufficient vigor to have constituted non-consent, or (2) there was 
sufficient force used by the attacker to overcome the will of the woman. See 
Kasubhai, supra note 86, at 53. 
90. See Remick, supra note 83, at 1105, 1131. 
91. See Beverly Balos & Mary Louise Fellows, Guilty of the Crimes of 
Trust: Nonstranger Rape, 75 MINN. L. REV. 599, 601 (1991); cf. Martha 
Chamallas, Consent, Equality and the Legal Control of Sexual Conduct, 61 S. 
CAL. L. REV. 777, 800 (1988) (contending that there are a few state statutesthat should be read to require affirmative words or deeds by a woman). 

966 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

passage of such legislation would prospectively create a beneficial 
social change, such that women would regularly speak up as sexual 
encounters transpired. Thus, �[i]f women could rely on the legal 
presumption that all escalation of intimacy required a clear, affirmative assent, it might be easier for them to decline to go forward.�92 
Once women did generally behave in line with this new legal reality, 
the absence of a rhetorical assent would suffice to give fair warning 
to the man of nonconsent and would warrant his criminalization if he 
had intercourse without having obtained such consent. This position 
is at best rather speculative. 

More commonly within LDF there are calls for public policy 
implementation of the weaker version: that �no means no,� i.e., that 
once the woman has rhetorically expressed nonconsent, sexual intercourse is rape. This is a seemingly reasonable notion, but in a society in which numerous women say �no� when they mean �yes,�93 it 
suffers from the same practical defect as the stronger version. Functionally, adoption of a rule that criminalizes all acts of sexual intercourse that occur after the woman has said �no� means that all of 
those many millions of real life instances occurring daily in which 
women use that locution become potential strict liability crimes. By 
simply averring that the �magic word� was spoken, any very difficult 
rape case to prove would be transformed into a relatively simple one. 
This would have the unfortunate collateral effect of creating a strong 
incentive for prosecutors and individual complainants to provide 
false testimony. 

All of these reforms would address the numerous instances 
where LDF asserts that rapes have occurred in the absence of a 
contemporaneous belief on the part of the woman that she was 

92. Baker, supra note 87, at 665. See generally LINDA R. HIRSHMAN & 
JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 2 (1998) (�Overtime, the legal terms of sexual exchange have defined the social rules of socialbehavior, influenced the gender division and, ultimately, affected the relative 
bargaining power of persons.�). 
93. See supra note 89; see also JOSHUA DRESSLER, UNDERSTANDING 
CRIMINAL LAW � 33.05 (2d ed. 1995) (asserting that under current culturalpractices �no means no� is sufficiently episodic as meant literally in sexual encounters that a defendant ought to be allowed to claim mistake-of-fact defenseas to consent even if the women explicitly had said �no�). 

April 2000] FALSE RAPE CLAIM

raped. These instances are described as frequent, by a combination 
of generously characterizing a large share of �unwanted� sexual inter-course episodes between intimates as rape of the female participant,94 adding in large numbers of instances where the sexual encounter is desired,95 and including instances of all sorts in which 
women have sex with dates after drinking alcohol.96 

Rather than recognizing that its definition of rape is radically 
overbroad, LDF in effect criticizes the women involved for false 
consciousness. For instance, one leading feminist scholar specializing in the so-called �date rape� issue expressly states that the majority of raped college students did not realize at the time that they were 
raped.97 Others potentially falling in this category would be wives 
who think that their husbands cannot rape them, and those who have 
sex while inebriated, because, as some assert,98 women cannot consent in this state. Presuming that after sexual intercourse such a 
woman was persuaded that her contemporaneous view was false and 
that she really did not consent, that woman could truthfully testify at 
trial that she now believes that she did not consent when the sexual 
intercourse occurred. Her sexual partner could then be lawfully imprisoned as a felon. Their doctrinal notion of retroactive strict liabil

94. Compare Torrey, supra note 11, at 1017 n.15 (�I believe any coerced 
sexual activity is �rape.��), with Estrich, supra note 4, at 1093 (highlighting the 
impracticality of punishing all coercive sex). The more expansive notion hasnow become the academic mainstream �common sense.� See SCHULHOFER, 
supra note 81, at 134. 
95. Under the legal dominance feminist rubric, in addition to the general 
categories of men with whom women cannot help but be raped automaticallywhenever they have sex (for example, their ministers, doctors, therapists, 
teachers, employers, etc.), some tenured law faculty have gone so far as to argue that rape prosecutions should lie against married men regardless of 
whether the wife �consented to the sexual contact with positive words or positive conduct� so long as the husband had ever previously physically assaultedhis wife. Balos & Fellows, supra note 91, at 609. 
96. Professor Mary Koss acknowledges that in her own principal study�
the survey of 6000 women at 32 colleges published in Ms. Magazine (whichlaunched the category �date rape�)��only 27% of college women labeled 
their experiences with forced, unwanted intercourse as rape.� Mary P. Koss,
Detecting the Scope of Rape: A Review of Prevalence Research Methods, 8 J. 
INTERPERSONAL VIOLENCE 198, 208 (1993). 
97. See id. at 211. 
98. See id. at 217. 

968 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

ity rape would seem to serve as a justification for punishing the men 
involved ex post facto. 

Eliminating any mens rea requirement would surely raise the 
conviction rate toward the ninety-eight percent benchmark. By definition, if the woman testified at trial that she currently believes that 
she did not contemporaneously consent, the man would have to 
be found guilty. As with other strict liability crimes which encompass millions of violators, it is impossible to enforce such laws; 
all that can occur is a handful of selective prosecutions.99 This proposed version of strict liability would approach retroactive absolute 
liability, whereby at her sole discretion, the woman could imprison 
any current or former sexual partner as far back as the controlling 
statute of limitations allows. 

Such a revolution in the legal process would be justifiable if and 
only if some defensible reason could be articulated to authorize a 
heightened evidentiary status for a woman�s complaint of sexual 
mistreatment. The rationale advanced by LDF to justify such special 
treatment is that women do not lie about rape since only two percent 
of rape complaints are invalid. However, as demonstrated in Part 
II.D, this figure is thoroughly unreliable. 

V. RAPE LAW AND RACISM 
To further advocate its changes in social policies regarding 
rape, LDF sometimes advances the notion that rape is tolerated 
in American society.100 However, rape has been, and contin-
ues to be, treated as a felony by the Anglo-American legal sys- 
tem, with severe penalties upon conviction.101 Currently, for exam

99. See generally DAVID J. LANGUM, CROSSING OVER THE LINE: 
LEGISLATING MORALITY AND THE MANN ACT (1994) (illustrating that theMann Act, which makes it a felony knowingly to transport women or girls ininterstate or foreign commerce for the purpose of any sexual activity for whichany person can be charged with a criminal offense, was deployed in an entirely 
capricious way, and that it ultimately was effectively repudiated as unworkable 
and unjust). 
100. See, e.g., LIZ KELLY, SURVIVING SEXUAL VIOLENCE 156 (1998) (�Inthe public sphere, women�s experiences of rape are often redefined as sex 
. . . .�); Ross, supra note 11, at 806-10 (noting several stereotypes that are reinforced by a dominant male perspective on rape). 
101. See, e.g., Berger, supra note 4, at 8 (�A second distinctive feature of 

April 2000] FALSE RAPE CLAIM

ple, the average length of time served in prison for rape is more 
than sixty-two to eighty-one percent of that served for murder.102 
And while there has been in recent years a general increase in 
imprisonment of those arrested for felonies,103 the likelihood of 

imprisonment for those charged with rape �has increased by over 
200%.�104 

Moreover, in America, where racism has always been ubiquitous in the deployment of the criminal law,105 the fate of blacks is 
radically disproportionate rates of arrest106�even higher when corrected for mental illness107�and, if found guilty,108 exceptionally se

rape is its penalty structure: always harsh, often draconian.�); Lynne N. Henderson, Review Essay: What Makes Rape a Crime?, 3 BERKELEY WOMEN�S 

L.J. 193, 220*(1987) (�Rape has traditionally crsied the harshest penalties inthe criminal law, including the death penalty.�); see also DEBORAH F& SHOD�& 
JUSTICE AND GEN@ER: SEX DI�cIMIJA�ION KE4THM L
W`2�f (1�9	 *�ްiailh�� �h2p�the pun9smmqnts for certain forms of sapg.lav! bemainod sever}'~`roubhout+the fa�uTeenth and twe�~40Q�pg�`vu�c�9s)* 
307.p[ae DoxBt�t/bDK��d, Inmaes$brvijw%L+Re time, Jusu)od AexCvuf��h�
Xeports, O^}*^A��S, J�n� ;1, 1999�%at�g�O�k�nݙ�$I�\�����0��U%
@�8���6�<�~2��CX tN u��m��H�_�b��+W���jog͈���t��^�6���&}�,�ㅍ�(8���=�|����8g~ӷ��f���w��b�jWiM��=����̠!��q���Mi9o�OM}w��z����	0I$ڨ��
J����3�����,��8I�W�F^~����=���	5��`@XC�I����&VX�hd!��1���>��%�3l�ӡ#���]�Һu��OW̤IӮi��I�H"�_~��=����J����`�d!,���m:\��2eYߦMg�n�v�5��� L�X�dȐ�t�4شl��d�(��S��)V��-a�l�?1u���;X�W��r�[�12�8�QF˗��-�R���c��k:v��T��@J�-*��Z���UZ��������OoR�{�����uۘ��F�Mƚ�m��3��gd|�ߤYWy{?S�V3�:��DH!�#Qm$3�
&�f���i��	6��k�J̱TlSH�*a[�|��	��L۶���|o-^I�
�#��`���a�wn:tn�u"![؞�T�����m��S�{r��u뇙溯��*�0գ�(i��V�v��8ut`s��ש�>�����4����`~
!�4V��:�lذ�0�<���wD@X�4i�b,�q��!��4|<�����e�C�
���]����g�)P�Pѫ�
�u�*U�ع��=���c�i0Fʐ�4�[�B��3d�شe_S�B]k��y�~�����V�pYygWk��M����YC�����Ӡ��>{�}L�Z��q1??ʜ�z$�)Z����F����)��(Uݲlഉq\�P�|]S�zs:��Uk�0u��u�*�I/ J�(�@�&�{fĈ1f�΃f��٦n��U��f޼%�����	7�d�B��B�O���"�����
��`8�n*�=˘1�f�r)�2ؼy;
��#FL���
�mc�R�4� �*���S��ƈ�[���]�ZS;�V�DUk���۟*7��]W��L��m���1<�%�Lc�r��F�M[�{`�U��5fR���
�!���O�G{��0L�����k��d��>�(��|�پ}�Y�d�}YeL�����M�ܹ+t�b�`ˠ�O����?�C,@l�pSBw�s�-eg���]����w�f���>�z�3�J���̌s&+eLcU��R�i�M'���~~(/�lZ*��h3в� o�-�,QM^��[�Yj绎�{^i (\��ɒ����,�������ML�۔W�x'͇��rX��ޫ)P��S�j�)m�L�0�O�kB͛��i�ެX��=��Y�j��ҥ���,]���ߚ�?���ѓ��ͻ̙3M�BE��G"+b�S�K,��{l�p�W�ڲ@����R�L�V�V�t���L�:�l۶_Tx�\�p˜:u�;���sRȇE�����EKH�f��1&F$�榇@��
͜%�����M������tJ9a�&
-��E�X��{�%6������*mQK�P����o*Um�㾡p���=��Y�R�V���ʕ�(��dΟ�b֬�bz�bj�hlʗ�)֫j
P�z}�|�
̐�ۯ{<�{���:j�
3V����O̍��P��]@�X��s_E��1�+�6m�tQ�j��f�9r䴹x�y3F{��gbc�&.�m�܉��uX����U�*��o�?�-'K��R;���q�2�b��4A!�BB��o�*5���R�a��6퇙����2�[o�o3	����O�́�
K�����[��O��6C��3-�z'>k��cu�	�u��V3d�8ӤI[]c}��ؙ(�С���L�g�a��v��瞫�1��X�(���
D?���X!�*U�1@!H_˖l6�b�:s��	s��5s�J����9q₀��ଌ�\�z�DDD��x�IHp��w�������W_�4c�L0a�߰��� a���M���M�~�z�O���߱UǶ��B�W��z��Vh*g�רojժ'�ZM)ks3~�d�n�&뀮甹|���2^o���
]�G���0��L�6���1X�og��XWP�RmS�\
��h��5��z*�ͳ���c�1��Xi����6���G�j�Ju��Ν�*`Z�Y��f���2��C��MW�����2����u�����/�}��zm����7�|��$3i�3g�2�[	��f������a�aG̮]G��@p�lڴ_��Q�ީ0�]���."ݱ��!�.�1QQ	���@ ��؍�qq>��[���̲ek�g)4}����6�V����9��e��@�zͬ�;wA|ʔ)ۡ�������C�.�:u�E��p!�z�b,X!�="\�ƿv-R�zۆ�]��XCΞ�T?���?�t�:��k�S!��m�l�����Q#+�,��[	̉5���N

=�[['�h��ԩ����
�����X�X�G��W�9������
��HG����o�z
LXg��Z����Is�~�/��Q�H	�
&�f`)�䇶�n�=P74vB�����]}H�w�ߒ0_��1��`D閡��aD&�E�Wi�{���y3=�vw��/��6��P.]n��Nh�|�l���ժs�f:є�g�����z�c��?|������w��nE~�r�	v��w숞���U�I�����h�w�:;�R�e��`�b�+�=�A�˴T�|FX$���~R��>G�h����Ov������D�@�.���{`bb��:w7�����?���yxU(�K����\��nO��矁x��:���A�?H}}C` ��t�	��HK@)!�֏�ҔRRR*`���~��tt��������������Z�����4��r�IIoNVWۥ��
A�d����0{]�[iM�J!��b_�P/
��'���
Zm��z�	tj�TYi���������
�����@w���(�������$�	 55F�HUW(�p��ݻ�����$2q�|��Z�;!��7�ܐ���mnnC1~��	Vhi�F����z?A@�������c��#$����8
M&$�S��Sb���8�Nf�a�nT�����',zJ@KK'��
p���� 
(�
�,�4w6::�����A�|>ק���v1%p��/R@@@��M[����&�A[[�p�t�EE��m��:Q`���Y|�B#���@,yyF��d4V����	X[˴�*Ag�Eľ��LO?Z
��sR��(�i��Pl��wP��-��+o��,>��>���,����B)
���q��?�ܾ=�

��mt��%���b��g�I��`jx(1��q7N�2����P�{{����ߤ[�f���g�@����N��FP��nF��v\\|{xx�T�����k��ˋ�b����������1��Ĵ�js���F�<�i�<�Y��	d�-�E��Ԝ���~�
�����Q|<���fg�q���b7���x�3C�̡C�W��v~R��'�9�!��=9۹+����@f�v)�sԺu>	6)##_s$&�m�����
'��+��R��T��_���ѝ@6�����mj�Vˎ�E����������x�+�=3��…�

�see�	8����	m[�n�������&S��
�t9˯}�32 ���!AA�4񺟟_JP�oo޼�*""�6::���{߾���G��y(��a�&{8;;g��h����)�{��m�����Y]��{����9yn��O���c�ܗ�y˃(���>�KYgv��l%|�Q���JF�Ş9����$��l

{N��$6D���c/s�4W���>
X��rw�JG䰔
��(����������ـ�r|)�wEE�d��Ha�	�ϑ��X�-����ƌ$�a�.�K��b�(b�Y����G�ה1܎g"u,��t�@
�I&C(���(ķ;��(�RP@1&���WAN�1�`���m& �
�`:F+-�`P�CH��(
|�n4�@��k�=Hd-�6nb��>BT�td}�BB#U%?���{�d�,�W���Y�IO[v~��t�Xs��u8�8�q@x�~,��jz�q��
P�BF,M��Lj�%�q�K|�Z��!��2
����}qs8cw��Y�)��1%�Hl������A)[?;3��uu���Z�g=��Ɗ����$:���<��NJ�O�`�
7b>-�����X�ﳊ�d��}�2>�g/
�Drff�W
���
��s_�#��{�>�Bp�y=���
7��N
�߻�u�Bb��z\����G��V}ޜ8���o
���:Ĝ6ס�ZQ�kM������oc��A���>�K�,�clA�|�s�������BÀ�L�G�F��0�-����g(8�ΐ
��Do��Hx�z�9r'�7$%��;`
Ϙ�P̬H���.r�B�b(������^:3�A���P���؃u$#
ې��U�h�q£��Έ�ִp���U���� G�G譯_�P��,�&{�� �$S��&������$�D��	.��u�}r�R�`��G��?����8#n�0�8�)X��%�~P�����]��%���@2
�h0��tb~���e�BP��#{c�k��� 
P�
0p
�0΀�1_t���ݶ��>��`:&�`
�583�bX`f%��x��d���S�(����d�_m���aϬ��
rPRL�b�Jq=蠞��穈��dx�+('0��a��pt�:T{�0BPR�j����s��[c/4L
89����&�m����%�����S���_d��V0�
�seH
��Gǿ%~
/w

�[��>s��[1��4�EG���nq��,rE,\�XPq�r,�c�?�,��2�|D�xU��([�;EE�'�G�v��4�d��g@�,
:W��Ӝ�o���?�1�X�7�� �9NxP��-����{���6�>��w_[c�(�W8Gq�ud�8A�J~@��g�y���߱�%,%��韤�Yۯn���
Q�҂��!��
��@�'#nɈ��<�"��ŀjB6%�ih�b�(!Kqt
 �2f
8!�@�p��K[�s7}y��<,7��p����KrC�orn^�Av(C��]u36��ƿ�_c�6_�t3-�u/�Y݇H�(
���/g`91��>����N������i�u%@}۬:���L쵖�`�P���*v������3����	�g�a.�l��K�b|�q�F��とo<ŏ)��AÅZ�s�2�z�f$�Yg��)X��2
(�i$b���7Q�|�?�`���]̉�$�������)_>��p���E;��]�e�<�7s/wt����c�݇��^Z
�wc���Q��2�4�Ó���I/|����v�tX�@0A0�Z]EtL,��N�������ܐ�P0Hd;(7`�_9��@��\L!�~ǒВ�{���2���u��Ww��,4�GƮ�阎H|;�x�<���{)��Rp���~��d���+-���H<�R�Ҡ��ݝf��eL8�.E
�(��jp*�
�% 1)Ke k�;gʸ�
�a�K,
��1	gd�vLnJHޥ�r��0�A�0��C/��LBP4'
;��
�@
��nQa������ɠc�R����5������
/?�
��|�:���c�f%o���ض3����h

v:
2���4 ���t bJ9��0��`�.�&,�jFI�ByD�ĥ(��(��@�Ԛ^(���s�#5�T|�ḡ�<�X� ӏ0y<o�w�/*�|s)G����*��/�wX���Vp�
�7�Qi���e'
�T�8�|�9�	g��,�Ď2f��^����u�`?�6
��Lш ݓ�F���5ge;����G��U>[���H)xQ'~-F�F�ah�!�f�ٻ�7��DQh%R	��J
�}
��/�S	��1P��t���(������8a�x,�<��`�4>���8�1���0z��{��~���aƈnp㣄���=�M8��tEg5ؓ�:�Q�,n��
6cR�H1�Y�IT�?����j�h�0
�`P�	��M,0����O�R���v�v��>�d�
�(���9n�/�3��dL&����feb?2�
�He�L
2d|��PNG


IHDR���>a�gAMA�ܲ�tEXtCommentIgnored Tags: $0152
dr�tEXtSoftwareGraphicConverter5]H�]�IDATx���UU��sVP@	��1"��"��Ep�$	�D��Ar�A��� �sN
4�&6��~��V��������w�{���V�ZU{��Y���������_��^��z�w����e]tѕ�\rI�K/�4�W\���k�����ox��>�+W�Y���W���){��w�-P����=��7��\�m�������_�G�̦}_��\������;Yν��+�7/����c�=^��>�Ӳ�Ӻt�6oԨqk'O��yѢ��֯�t|��m'�l�q���ñ,G��H��:��r�hT�}���؈�ñ{��Y�~��ŋ��;wѾ�3��=z��n�z.�_����J������ӱ��̙�0@���������oD�u�]���
Ld;୆p��
3��j�v���"�Ț;
��G"@�!
�0�"�l fY�Oʒ�Gt��q��&K��b0!�)�J��͜FS�^ͺ��װcǺ��j(q�p-���N�$WԘ&;D�B���bŢvk[ZjKr��XZ�)�Ŕ(A��y}�KQ��x:P�� ����# s����'x�
��@�6�L�@#ۃF(�Vh!vpq�/4ěo�1��p��f�p�����DЉ�t�0��[�ٖ�]����o`�J@�6`�Q�^�<���5W#�8ƥIW�����d�C>4��{=dq�KM��!p�Z�7����tax��`:h��kT��L��:�K.�����F+����a
�f@��
����,�
]�"�1�C�8�Rw#;9�X	c�EWj��ǀ�{<��C��Tf<Y��w��b�E�����Ʊ�=2"�r.[��Ԗl��(�LNU��V8�
xfA�w0�F��0��Rc�!C>��j=]p�j����VW�6`��#Nׄ��a|'D$"U����X
����S���t����P	�� ���AP��XE 
��hD���L�
tj`��-�P��TM��9R�(M��@���k�d2C�ߠ��2�V@�#��I�MR��
� ���)Mʼn��3^�\�(��)�xx�7d���T5G����S�#< D
���\@A�|�������xE��0���x��� X6���eC���5X�A�9��Ņ�tA;����Xa�}�ي<��Nvt��)-y�;��4[�>�Ӎ��UR�`�{`C�@�2�
H�T�����M.��v�NIa�u��'��f��#2R�5r�A
�u��>�VG[Ae%%�2�X"�8��sq������#A�ja!�x�ьP�lLn�Xi"�	܍dʍ��'L�
E�<ˆ�;]���*���v�ƅ\to۱�8\]UG��L/*K���Ҫ����Ѐ
�A	:0�'�$� 	"8��<�O'˽�Xq(L�*[���+����.wxÊ�c)��e
s�ˎ�+wc��jT�u
.��x.� ���-F�� 
�#��ʈN��Q!���,�Z����y���������������/�������������ds�����hU������
([k��r����V1J[{������*c�e\��0(�I5��U���ĺs���xc�������UG
?������/���ԏ
�	s���gO�th���5Ie���&"J���8�����VE
HK�������������賿���������������"Rˏ����з����˦����m'%Y�������*,���ܿ�$P�����
+V�����������1a�KB&U���06�;8	*\�~~Q��~���??Q�)	*R1^&F%'8�8>��8	$\���(�'$q6=!��p$1I%<[.4A_���*\��W����\\���W����������������������p����NENj2
"