The Myth of the Lying Victim - The case of Dominique Strauss-Kahn

By anyone’s estimates, the rate of sexual assault in Australia is high. In 2010, the Australia Bureau of Statistics (ABS) recorded 80 victims per 100,000.

This is significantly higher than the next two most common violent crimes – kidnapping/abduction and murder – that impact 3 and 1 Australians per 100,000, respectively.

Sexual assault figures become even more alarming when you remember that most sex crimes – 85 per cent in one recent Australian survey – are never reported. In Sweden the reported rate of sexual assault is twice as high as Australia (168 sexual offences per 100,000). This higher rate may not indicate a greater incidence of sexual violence in Sweden, but an increased confidence among Swedish women that if they report sexual assault they will be believed and all efforts will be made by authorities to bring the accused to account.

Some fear that the unravelling of the case against former IMF chief Dominique Strauss-Kahn (DSK) will undermine feminist efforts to reduce sexual violence. They worry that just as women are shedding the thousand-year taint of being unreliable legal witnesses and holding out hope that in a courtroom contest they might be the one a jury believes, the spectre of the lying rape victim rises again.

Lawyer and Fox News commentator Susan Estrich says that, “the myth of the lying woman is the most powerful myth in the tradition of rape law”. The doubt about women’s credibility was institutionalised in western law through the requirement that other witnesses must corroborate a woman’s evidence. But while many western jurisdictions have abolished the corroboration requirement, trial judges sometimes may still give harsh warnings about the need for corroborating evidence to sustain a rape charge, often with the approval of appellate courts.

Indeed, even where corroboration requirements have been eliminated, perceived problems with female credibility continue to contribute to low conviction rates. A study by Kathy Mack found that even in the select cases that make it to trial, conviction is rare, particularly where the victim and perpetrator know each other and there is no injury beyond the rape. In both the United States and Australia, convictions for rape are lower than for other serious crimes in part because juries insist on more corroboration than in trials involving other serious crimes, and typically see rape victims as less credible. A recent Australian study has found that being male, low income and politically conservative made a juror more likely to deem a rape victim as lacking credibility and the male accused as innocent.

The good news is that changes to sexual assault laws have seen a decline in the social acceptability of sexual violence. As women have come to be seen as credible witnesses in their own defence inside the courtroom, so have their testimonies about the fact and devastating consequences of sexual assault been taken more seriously beyond it. Today, a woman’s allegation that a man forced her to have sex can seriously damage his reputation, private life and career. Fifty years ago the damage of such an allegation – would she ever have raised it – would largely have been done to her. Sure, the newfound pariah status of men alleged to have committed rape may partly be related to Christian wowserism and related judgementalism, but is also a reflection of a newfound and hard-won awareness that women have the right to decide if, when, how and with whom they have sex.

It’s over-egging to view the credibility problems of the maid in the Strauss-Kahn case as providing proof of Kahn’s innocence. The correct interpretation is that in a he said/she said case where the issue is not whether sex took place but whether it was consensual, the highly impeachable nature of her past will almost certainly lead a jury to see him as the more believable witness.

For some, this is the problem. They say that once a suspicion is raised, even where a case is dropped, the damage to the man’s reputation is irrevocable. They call for all rape allegations to be shielded from public view, with the name of the man released only if he is convicted of the crime. Says philosopher apologist Bernard Henri Levy:

I resent the New York tabloid press, a disgrace to the profession, that, without the least precaution and before having effected the least verification, has depicted Dominique Strauss-Kahn as a sicko, a pervert, border-lining on serial killer, a psychiatrist’s dream.

According to the somewhat melodramatic Levy, the affair won’t be over until Strauss-Kahn is “recognised as innocent, completely innocent – and re-established in [his] honour”.

The truth is that all crimes have false reporting rates and sexual assault is no different. Somewhere between 2 to 3 per cent of sexual assault accusations turn out to be malicious and false, which is about the same rate as other serious crimes. In Australia, in addition to the public exposure and humiliation to which a woman is exposed if she falsely claims rape, police will often charge her for making a false report.

This is as it should be. If women want to be taken seriously as credible witnesses on their own behalf, and as respect-worthy moral agents capable of offering and withholding consent, there must be zero tolerance for liars, however compelling their reasons for twisting the truth (who could forget Mayella Ewell in To Kill A Mockingbird?).

However, if we are serious about holding men to account on rape, the shielding of those alleged to have committed a sexual crime from media reporting will not do. Already the conviction rate for sexual assault is extremely low compared to those for other violent crimes, with only one in 10 reported incidents resulting in a guilty finding. The simple fact is that reporting of allegations in the press often leads to other victims coming forward, providing just the sort of corroboration that is necessary to bring rapists to book.

Earlier this year Victorians learned of several sexual assault cases, including cases of alleged gang rapes involving children being pursued by Victoria Police and the Office of Public Prosecutions, being withdrawn or struck out.

However sorry I feel for the handful of men falsely accused of sexual assault – and as the mother of two sons I do feel sorry – I feel just as badly for the far more plentiful women and children who are regularly told by prosecutors that their cases will not be proceeding because there’s not enough evidence for a guilty verdict to be found.

Publication history

Courts, Credibility and Conviction   ABC The Drum Opinion