THE TRUTH BEHIND LEGAL DOMINANCE 
FEMINISMÕS ÒTWO PERCENT FALSE 
RAPE CLAIMÓ 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 Òdominance theory.Ó See Kathryn Abrams, Songs of Innocence and Experience: Dominance Feminism in the University, 103 YALE L.J. 1533, 1549 
n.66 (1994) (referring to Òthe entire range of feminists who have worked theoretically, and often through political practice, to raise consciousness aboutmale sexualization of and aggression against womenÓ). 
2. See Kathryn Abrams, Sex Wars Redux: Agency and Coercion in Feminist Legal Theory, 95 COLUM. L. REV. 304, 304 (1995) (ÒOver the past decade,
dominance feminism has become the ascendant feminist legal theory . . . .Ó) 
(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 1991Ñthe last year canvassedÑtwo 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 Òdifficult to elicit accurate figures on sexual force by survey or interview techniquesÓ and acknowledging SommersÕs critique, infra, of existing 
sex abuse data); DAPHNE PATAI, HETEROPHOBIA: SEXUAL HARASSMENT AND 
THE FUTURE OF FEMINISM 61-62 (1998) (discussing the Òabsence of serious 
research on the incidence of false or baseless accusations against men, as another result of the gender bias in the [sexual harassment] fieldÓ); CHRISTINA 
HOFF SOMMERS, WHO STOLE FEMINISM?: HOW WOMEN HAVE BETRAYED 
WOMEN 225-26 (1994) (stating that gender feminists are pushing forth theiragenda by Òalarm[ing] the public with inflated statisticsÓ); 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 
Òwomen donÕt lieÓ 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 Òmalebashing,Ó8 this Article concedes that were it empirically 

Phantom Epidemic of Sexual Assault, 103 PUB. INTEREST 54, 63 (1991) (stating that Òestimates 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 distortionÓ); 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, ManÕs Trial, WomanÕs 
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 Òthe burden of proof fromthe victim to the offenderÓ).
8. See Susan H. Williams & David C. Williams, A Feminist Theory of 
Malebashing, 4 MICH. J. GENDER & L. 35 (1996). If LDFÕs 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, 
LDFÕs 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 LDFÕs 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 Òthe overwhelming consensus in . . . research 
relying on government data is that false reports account for only 
about 2 percent of rape complaints.Ó9 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 (ÒThe conventional wisdom now is that the proportion of false reports is negligible, perhaps as low as 
2% . . . .Ó). 
11. See JULIE A. ALLISON & LAWRENCE S. WRIGHTSMAN, RAPE: THE 
MISUNDERSTOOD CRIME 205 (1993) (Ò[T]he actual frequency of false rape reports is estimated to be a low 2% . . . .Ó (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 Òstudies thathave shown that the frequency of rape reports proven false [is] approximately 
two percentÓ) (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) (ÒResearch indicates that about two percent 
of rape reports are false . . . .Ó) (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 (ÒWhen researchers replicated these studies using policewomen or trained rape investigators, however, the unfounded rape rate dropped to two or three percent.Ó) (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) (Ò[R]eliable statistics demonstrate that approximately one to twopercent of rape charges are found to be false . . . .Ó); Deborah Gartzke Goolsby,
Using Mediation in Cases of Simple Rape, 47 WASH. & LEE L. REV. 1183, 
1194 n.112 (1990) (ÒAuthorities estimate false reports of rape . . . at about twopercent.Ó) (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 Ò[e]stimates indicate that only 2 percent of all rape reports prove to be falseÓ) (citing Torrey, infra, at 1028); Kathy 
Mack, Continuing Barriers to WomenÕs Credibility: A Feminist Perspective on 
the Proof Process, 4 CRIM. L.F. 327, 336 (1993) (ÒEmpirical studies have generally shown a rate of false reports for [rape] of less than 2 percent . . . .Ó) (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 (ÒA Rape Analysis Squad chaired by female police 
officers discovered that only two percent of the rape charges brought werefalse . . . .Ó) (citing BROWNMILLER, infra note 34); Wendy J. Murphy, Minimizing the Likelihood of Discovery of VictimsÕ 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) (ÒIn fact, the false accusation rate in rape cases is between only 
one to two percent.Ó) (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) (ÒKatz and Mazur studied adult rape victims, and concluded thattwo percent of allegations were false.Ó) (citing KATZ & MAZUR, supra, at 214); 
Roberta J. OÕNeale, Court Ordered Psychiatric Examination of a Rape Victimin a Criminal Rape Prosecution Ð or How Many Times Must a Woman Be 
Raped?, 18 SANTA CLARA L. REV. 119, 141 (1978) (ÒThe commander of the 
Rape Analysis Squad in New York City reported an estimated unfounding rate 
of 2% . . . .Ó); Elizabeth A. Pendo, Recognizing Violence Against Women: 
Gender and the Hate Crimes Statistics Act, 17 HARV. WOMENÕS L.J. 157, 171 
(1994) (The estimates are Òthat only two percent of all rape reports prove to befalse.Ó) (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) (ÒNew 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.Ó) (citing KATZ & 
MAZUR, supra, at 207-09); Julie Taylor, Rape and WomenÕs Credibility: Problems of Recantations and False Accusations Echoed in the Case of Cathleen 
Crowell Webb and Gary Dotson, 10 HARV. WOMENÕS 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 Òtwo percent false rape 
complaintÓ thesis.13 ÒMeasuring false allegations is all the more difficult since policies on unfounded criminal complaints differ from 
one jurisdiction to another, resulting in very different numbers.Ó14 

The basic problem with accurately ascertaining the percentage 
of wrongful accusations is that the overwhelming majority of rape 
cases result in plea bargains, a Òblack boxÓ 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) (ÒEstimates indicate that only two percent of all rape reports prove to be false . . . .Ó); 
James A. Vaught & Margaret Henning, Admissibility of a Rape VictimÕs Prior 
Sexual Conduct in Texas: A Contemporary Review and Analysis, 23 ST. 
MARYÕS L.J. 893, 904 & n.56 (1992) (Ò[S]tatistical data reveals that a low percentage of rapes reported are false.Ó) (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) 
(Ò[O]nly 2% of all reported rapes prove to be false . . . .Ó) (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) (Ò[S]tudies indicate that the statistic for 
false rape reports is only 2 percent . . . .Ó) (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) (ÒOther researchers put the figure atonly 2 percent.Ó) (quoting HELEN BENEDICT, infra note 57, at 18); Catherine L. 
Kello, Note, Rape Shield LawsÑIs It Time for Reinforcement?, 21 U. MICH. 
J.L. REFORM 317, 344 (1987) (ÒStudies have demonstrated that the rate of falserape reports filed corresponds to . . . two percent.Ó) (citing BROWNMILLER, infra note 34, at 387); Linda Robayo, Note, The Glenn Ridge Trial: New JerseyÕs 
Cue to Amend Its Rape Shield Statute, 19 SETON HALL LEGIS. J. 272, 293 
n.148 (1994) (Ò[L]ess than two percent of rape complaints are false.Ó) (discussing Mack, supra, at 336); Jaye Sitton, Comment, Old Wine in New Bottles: The 
ÔMaritalÕ Rape Allowance, 72 N.C. L. REV. 261, 267 n.39 (1993) (ÒOverall,
the number of false rape charges has been estimated at two percent . . . .Ó) (citing BROWNMILLER, infra note 34, at 387). 
12. See infra Part IV. 
13. For a discussion tracing the source of the problematic Òtwo percentÓ
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 departmentÕs 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 reportersÕinquiries 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 Òto confirm or exclude the person. In 25 percent of the cases where they can 
get a result, they excluded the primary suspect.Ó20 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 numberÑway beyond the two percent rangeÑof 
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 (ÒSince 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 . . . .Ó); 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 LDFÕs 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 BrownmillerÕs 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, ÒEstimates 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 ÔunfoundedÕ rape complaints may 
have contributed to this myth that women falsely cry rape.Ó25 

Professor Torrey begins her law review article by explaining 
that in preparation for her study, she Òbecame familiar with the 
enormous amount of empirical research in the area of rape myths and 
their power.Ó26 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. OÕNeale,28 and another 
law review article by Margaret A. Clemens.29 

The Rape Victim article reads in relevant part: Ò[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 Òperhaps the most strikingand counter-intuitive in the history of rape scholarshipÓ).
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. OÕNeale, 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.Ó30 

The second source, Roberta J. OÕNealeÕs article, reads: ÒThe 
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.Ó31 In turn, for this sentence Ms. OÕNeale cites to a student 
law review comment,32 which itself relies upon an unpublished grant 
application from the Portland, Oregon, district attorneyÕs office.33 
Because OÕNealeÕs language tracks that of Ms. BrownmillerÕs 
Against Our Will34 and relates to New York City rather than Portland, it is quite possible that citation to Ms. Brownmiller was omitted 
by scrivenerÕs error. Alternatively, because the cited grant application preceded publication of Ms. BrownmillerÕs book, perhaps the 
district attorneyÕs office relied upon the speech that was Ms. 
BrownmillerÕs source35 or upon Grace LichtensteinÕs 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: ÒEstimates indicate that only 2% of all reported rapes 
prove to be false, which is comparable to the rate for false reports of 
other crimes.Ó37 Only one source is cited by Ms. Clemens for her 
two percent figureÑBrownmillerÕs Against Our Will.38 All three of 
Professor TorreyÕs 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. OÕNeale, 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 sourceÑfeminist publicist 
Susan BrownmillerÕs 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: ÒWhen 
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 falseÑabout the same false-report rate 
that is usual for other kinds of felonies.Ó40 When one looks at her 
ÒSource NotesÓ for this proposition, she states it to be: ÒNYC Rape 
Analysis Squad found only 2 percent of complaints were false: 
ÔRemarks of Lawrence H. Cooke, Appellate Division Justice, Before 
the Association of the Bar of the City of New York,Õ Jan. 16, 1974 
(mimeo), p.6.Ó41 

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 judgeÕs speech reads: ÒIn 
fact, according to the Commander of New York CityÕs 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.Ó44 

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 Ò[a] meticulous researcher.Ó 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-judgeÕs law clerk, and he made inquiry of all those directly 
involved in the preparation of Judge CookeÕs 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 ÒRape Squad.Ó 48 The article discussed the very brief tenure of Lieutenant Julie Tucker, and how the 
squad, exclusively composed of police, not social scientists, was 
Òprimarily a statistic-gathering operation.Ó49 Although all of this 
squadÕs police Òmembers . . . [were] trained in judo,Ó 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 Òdespite studies showing that the percentages of 
rape complaints later discovered to be unfounded was only 2 percentÑthe same as for all unfounded felonies.Ó51 

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 CookeÕs 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. LichtensteinÑ 
followed by her friend52 Ms. Brownmiller in her bookÑrelied 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 Òtwo 
percent false = other feloniesÓ 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 sourceÑ 
Susan BrownmillerÕs Against Our Will. Professor Rhode tells us that 
her manuscript was read by a bakerÕs dozen of law professors and 
that her editor at Harvard University Press Òprepared this manuscript 
with painstaking care.Ó54 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. CooperÕs 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 Òmy neighbor and friendÓ); see 
also JAY, supra note 42, at 115 (ÒWe also called in a few ÔfriendlyÕ members 
of the press, including Grace Lichtenstein of the New York Times . . . .Ó). 
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 bookÕs propositions). 
58. Lynn Hecht Schafran, Writing and Reading About Rape: A Primer, 66 
ST. JOHNÕS 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 ÒunfoundedÓ 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. BenedictÕs Virgin or Vamp, the second source, reads: ÒThe 
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.Ó63 The authority 
for this proposition was the following quote from Newsweek: ÒResearch 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 falseÑapproximately the same percentage as other 
crimes.Ó64 

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

Attorney SchafranÕs 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: ÒBut on a statistical basis [false rape allegations] appear to be infrequent, even less frequent than false 
allegations in other types of cases.Ó66 In addition to relying on law 
review articles by Morrison Torrey and Deborah Goolsby,67 Ms. 
Schafran cites to another scholarly sourceÑa third law review article 
by Karla Fischer.68 

The cited pages in FischerÕs article do not address the issue at 
hand; but further in her text, one encounters the following footnote: 
ÒWhen researchers replicated these studies using policewomen or 
trained rape investigators, however, the unfounded rape rate dropped 
to two or three percent. Id.Ó69 No one who has read this far will be 
surprised to discover that the prior citation in the Fischer article to 
which the ÒId.Ó refers is none other than BrownmillerÕs 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 ÒconsensusÓ in academia based 
on one single unpublished speech Susan Brownmiller quoted a quarter of century ago. 

III. THE MYTH THAT ÒWOMEN DONÕT LIE ABOUT RAPEÓ 
A. The ÒSecond RapeÓ Disincentive 
LDF literature advances the proposition that Òwomen donÕt lie 
about rapeÓ 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 Òfalse reporting rates for rape are no higher 
than for any other crime.Ó Goolsby, supra note 11, at 1194. In Professor 
GoolsbyÕs 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 Òsecond rape.Ó72 Simultaneously, LDF 
wants alterations in the processing of rape charges by reducing the 
sanctions, costs and traumaÑi.e., the Òsecond rapeÓÑthat face 
women who come forward and press rape charges. However, LDFÕs 
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 individualÕs calculation of whether to deliberately make a 
wrongful charge correspondingly shifts. LDF exponents do not acknowledge that if the Òsecond rapeÓ 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 feminismÕs 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 weÑproperlyÑ 
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 donÕt lie about rape also rings untrue 
because men and women often lie about everything else in the legal 

72. ÒSecond rapeÓ 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 Òis as damaging, if not more damaging, than the acts of misconductthemselvesÓ) (quoting Louise Fitzgerald, Professor, University of Illinois). 
73. DAPHNE PATAI & NORETTA KOERTGE, PROFESSING FEMINISM: 
CAUTIONARY TALES FROM THE STRANGE WORLD OF WOMENÕS 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 coupleÕs 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 WomenÕs Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 WIS. WOMENÕS L.J. 81, 
127 (1987) (saying that sex is perhaps the Òone thing women lie about more 
than any otherÓ).
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) (Ò[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.Ó). 
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 ÒconsentÓ79 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, ÒTo 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.Ó82 

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 Òincidents in which the victim herself has not labeled the experience a rapeÓ 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 ÒrapeÓ 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. WOMENÕS 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 Òbecause of the basic feministinsight into the variety of womenÕs 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 . . . .Ó 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 victimÕs ÒnonconsentÓ is presumedÑfor 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 manÕs 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 womanÕs 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 manÕs guilt would be a 
proper inference in the factfinderÕs 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 womanÕs complaint is 
valid. Absent this unsupported assumption, one could readily infer 
either consent or non-consent. Provided the manÕs 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 partyÕs inner psychic state may be clear 
nor may the acts of each resolve uncertainties in the otherÕs interpretations. 
86. See Mustafa K. Kasubhai, Destabilizing Power in Rape: Why Consent 
Theory in Rape Law Is Turned on Its Head, 11 WIS. WOMENÕS 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 narrowlyÑ 
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 
silenceÑor even rhetorical ÒnoÕsÓ89Ñas 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 womanÕs 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 
ÒnoÓ when they mean Òyes.Ó 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, Ò[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.Ó92 
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 Òno means no,Ó 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 ÒnoÓ when they mean Òyes,Ó93 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 ÒnoÓ 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 Òmagic wordÓ 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) (ÒOvertime, 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.Ó). 
93. See supra note 89; see also JOSHUA DRESSLER, UNDERSTANDING 
CRIMINAL LAW ¤ 33.05 (2d ed. 1995) (asserting that under current culturalpractices Òno means noÓ 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 ÒnoÓ). 

April 2000] FALSE RAPE CLAIM

raped. These instances are described as frequent, by a combination 
of generously characterizing a large share of ÒunwantedÓ 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 Òdate rapeÓ 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 (ÒI believe any coerced 
sexual activity is Ôrape.ÕÓ), with Estrich, supra note 4, at 1093 (highlighting the 
impracticality of punishing all coercive sex). The more expansive notion hasnow become the academic mainstream Òcommon sense.Ó 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 Òconsented to the sexual contact with positive words or positive conductÓ 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 studyÑ
the survey of 6000 women at 32 colleges published in Ms. Magazine (whichlaunched the category Òdate rapeÓ)ÑÒonly 27% of college women labeled 
their experiences with forced, unwanted intercourse as rape.Ó 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 womanÕs 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) (ÒInthe public sphere, womenÕs experiences of rape are often redefined as sex 
. . . .Ó); 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 (ÒA 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 Òhas increased by over 
200%.Ó104 

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 arrest106Ñeven higher when corrected for mental illness107Ñand, if found guilty,108 exceptionally se

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

L.J. 193, 220 (1987) (ÒRape has traditionally carried the harshest penalties inthe criminal law, including the death penalty.Ó); see also DEBORAH L. RHODE, 
JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 246 (1989) (explaining that Òthe punishments for certain forms of rape have remained severe 
throughout the nineteenth and twentieth centuriesÓ). 
102. See Fox Butterfield, Inmates Serving More Time, Justice Department 
Reports, N.Y. TIMES, Jan. 11, 1999, at A10. 
103. See Ronet Bachman & Raymond Paternoster, A Contemporary Look atthe Effects of Rape Law Reform: How Far Have We Really Come?, 84 J. CRIM. 
L. & CRIMINOLOGY 554, 568 (1993) (illustrating that between 1981 and 1993,
the increased likelihood of winding up behind bars for robbery and assault was9% and 25%, respectively). 
104. Id. 
105. See generally ROGER LANE, MURDER IN AMERICA: A HISTORY (1997) 
(discussing the fear of criminal violence as a driving force behind much of ourpolitics, pattern of settlement, and relation among races and social classes). 
106. See FRANKLIN E. ZIMRING, AMERICAN YOUTH VIOLENCE 24 fig.2.4 
(1998) (describing that black adolescents are arrested for rape at a rate 4.2 
times the rate for non-black adolescents; as adults the black/non-black arrest 
ratio is 6.2:1).
107. Currently, prisons are the reservoir for seriously mentally ill individuals, some of whom commit crimes, including rape. See Fox Butterfield, Prisons Brim with Mentally Ill, Study Finds, N.Y. TIMES, July 12, 1999, at A10; 
see also ZIMRING, supra note 106, at 24. If we correct the arrest ratios by deducting the 22.6% of whites who are mentally ill, as compared with the 13.5% 
of blacks, and also take into account that among those who are mentally ill, 
12.4% were convicted of sexual assault (as opposed to 7.9% of other prisoners), see Butterfield, supra, at A10, the proportionate ratio of non-mentally illblacks to non-mentally ill whites who are incarcerated for rape is an astounding 8:1. See id. 
108. See United States v. Wiley, 492 F.2d 547, 555 (D.C. Cir. 1973) (Baze

970 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 33:947 

vere punishment.109 While the evidence is not conclusive, it appears 
that black men are no more likely to rape than white men.110 The 
radical disproportion in rape imprisonment rates can then be seen as 
a key marker as to just how racist the criminal justice process, as deployed, actually is.111 

(Bazelon, J., concurring) (ÒOf the 455 men executed for rape since 1930, 405 
(89 percent) were black. In the vast majority of these cases the complainantwas white.Ó) (citations omitted); see also ERIC W. RISE, THE MARTINSVILLE 
SEVEN: RACE, RAPE, AND CAPITAL PUNISHMENT (1995) (describing cases 
where black defendants accused of rape were sentenced to death despite questionable testimony). 

Recently, in at least one southern state, the death penalty has been reinstated for certain egregious rapes. See State v. Wilson, 685 So. 2d 1063 (La. 
1996), cert. denied, 520 U.S. 1259 (1997). See generally Yale Glazer, Child 
Rapists Beware! The Death Penalty and LouisianaÕs Amended AggravatedRape Statute, 25 AM. J. CRIM. L. 79 (1997) (discussing the amendment to LouisianaÕs aggravated rape statute allowing child rapists to face capital punishment). And at least one student note argues that the death penalty should be 
imposed on HIV positive rapists who know their medical status. See Stefanie 

S. Wepner, The Death Penalty: A Solution to the Problem of Intentional AIDS 
Transmission Through Rape, 26 J. MARSHALL L. REV. 941 (1993) (noting thatÒthe imposition of the death penalty in this setting would serve both the interests of the victims and society as a wholeÓ). 
109. While blacks generally serve somewhat longer sentences than do whites 
for similar crimes, Ò[t]he difference is most pronounced for rape, with black 
inmates serving an average of 70 months while whites serve 56 months.Ó 
Butterfield, supra note 102, at A10. 
110. See LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY: 
SEXUAL PRACTICES IN THE UNITED STATES 337 tbl.9.8 (1994) (showing that, 
by self-report, white women are 25% more likely to have been forced to do 
something sexually). Even assuming arguendo that on the average whitewomen have a somewhat lower threshold for considering themselves to havebeen Òforced,Ó it is hard to avoid concluding that black women are not apt tohave much higher rates of rape victimization; and as it is not disputed thatrapes are overwhelmingly intraracial, that would indicate rough parity betweenthe races in actual rates of crime commission. See SCHULHOFER, supra note 
81, at 250 (illustrating that only 6% of rapes are interracial). 
111. The extent of selective enforcement is staggering. In a recent hearing atthe New Jersey state house, one black dentist from East Orange Òtestified that 
he was pulled over on the New Jersey Turnpike more than 50 times over threeyears and ultimately sold his BMW so that he would attract less attention.Ó 
David Kocieniewski, Minority Drivers Tell of TroopersÕ Racial Profiling, N.Y. 
TIMES, Apr. 14, 1999, at B1. An official study by New Jersey on its state police highway stops found that blacks were stopped at double their proportionate 
share of drivers; out of those who were stopped, blacks had their cars searchedat double their proportionate shareÑso that ultimately Ò77.2 percent of motor

April 2000] FALSE RAPE CLAIM

It is hard to avoid the sense, therefore, that LDFÕs proposal is 
implicitly racist. Surely any reform of rape law must address this extreme disproportion and have at least a modest propensity to reduce 
it. Yet for most of the LDF discourse, race is simply an occluded 
category. And there is no reason to think that the LDF reconstruction of rape law would make an iota of difference in its racist outcome. Indeed, any net increase in the total number of miscreants imprisoned via such ÒreformsÓ would further (disproportionately) 
burden the black community. There is something unseemly about 
upper-middle class, white professionals, who are already in the most 
physically secure and protected stratum in the community,112 zealously advocating policies essentially guaranteed to put more poor, 
black male youth in prison for many years while characterizing their 

ist searches were of blacks or Hispanics, while only 21.4 percent involvedwhite motorists.Ó Thomas Martello, New Jersey Acknowledges Racial Profiling by Police, BOSTON GLOBE, Apr. 21, 1999, at A11. This racial bias also extends to patterns of searches of hotel rooms for drugs. See David Kocieniewski, New Jersey Troopers Use Hotel Staffs in Drug War, N.Y. TIMES, Apr.
29, 1999, at A1. Similarly, a lawsuit brought by the NAACP against the state 
of Maryland revealed that the New Jersey phenomenon was hardly restricted tothat jurisdiction: Even though only 17% of motorists were black, 73% of themotorists pulled over and searched by the Maryland State Police were black. 
See ACLU National MemberÕs Bulletin, 4 SPOTLIGHT 1, 2 (1999). 

If anything, there is good reason to believe that these disturbing figures, 
derived from police records, have already been sanitized. For example, whentwo New Jersey State Police officers were being seriously investigated for improperly shooting several young black students on the way to a basketball tryout, it was ascertained that they had engaged in a practice so commonplace as 
to have been given the appellation of ÒghostingÓ: ÒTwo state police supervisors said it was common practice for troopers on the turnpike to jot down the 
license plate number[s] of white motorists who were not stopped and use themon the reports of blacks who were pulled over.Ó David Kocieniewski, Trenton 
Charges 2 Troopers With Falsifying Race of Drivers, N.Y. TIMES, Apr. 20, 
1999, at B1. Thus, it appears that those police officers who are most egregiously racist in their behavior are the most apt to provide deliberately falsedata. 

This kind of racist ÒintakeÓ into the criminal justice systemÑeven if oneis naive enough to presume that everything within the legal process is perfectlyracially impartialÑwill necessarily result in a radically and racially unfairÒoutputÓ of disproportionate criminalizing of young black men. 

112. See GREENFELD, supra note 16, at 24 tbl.3; cf. KATZ & MAZUR, supranote 11, at 125-26 (indicating that the likelihood of adult women in Òthe richersuburbsÓ being sexually assaulted is very low). 

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

efforts as a freedom struggle against patriarchy. 

VI. CONCLUSION 
It seems clear that the two percent false claim figure, which has 
pervaded LDF discourse, has no basis in fact. Since this figure is 
clearly unsupported, there is no justification for shifting the burden 
of proof or redefining consent in rape crimes in accordance with this 
figure. 

As with many sociological myths, those about rape advanced by 
exponents of LDF have untoward practical consequences. Generally 
speaking, further efforts to revise the law of rape along the axis they 
advocate113 would be unwise. As Professor Elizabeth M. Iglesias observes, it would be more profitable to Òrechannel . . . reform efforts 
from the criminal justice apparatus to the public policies that construct womenÕs sexual vulnerability and the culturally dominant images of women and men upon which these policies are based.Ó114 

113. See supra Part IV. See generally Bryden & Lengick, supra note 4, at 
1198-99 (ÒThe reformersÕ main goals [have been] to facilitate prosecution ofthe perpetrators.Ó); Remick, supra note 83, at 1107 (Ò[W]hereas current rape 
law merely reflects our sexually coercive society, a standard based on affirmative verbal consent would prescribe sexual equality for men and women.Ó). 
114. Elizabeth M. Iglesias, Rape, Race and Representation: The Power ofDiscourse, Discourses of Power, and the Reconstruction of Heterosexuality, 49 
VAND. L. REV. 869, 886 (1996); see Sharon Marcus, Fighting Bodies, Fighting 
Words: A Theory and Politics of Rape Prevention, in FEMINISTS THEORIZE THE 
POLITICAL 385, 388 (Judith Butler & W. Joan Scott eds., 1992) (criticizing the 
emphasis of feminists on achieving more effective punishment of rape because 
Òan almost exclusive insistence on equitable reparation and vindication in thecourts has limited effectiveness for a politics of rape preventionÓ); cf. Henderson, supra note 101, at 228-29 (ÒThe best solution [to the current rape problemin our society] may be . . . to enforce the laws that exist while concentrating 
feminist efforts on fostering an understanding that rape . . . is always a 
crime.Ó).