Should deliberately false reports of sexual assault be subject to the same legal penalties as false reports of other felonies? Right now, accusers who lie about sexual abuse are criminally liable for filing a false report and perjury, as well as civil sanctions for defamation, but legal consequences rarely occur.
The question was spotlighted by the accusations surrounding Supreme Court Judge Brett KavanaughBrett Michael KavanaughSenators denounce protest staged outside home of Justice Kavanaugh Why isn't Harris leading the charge against the Texas abortion law? Cori Bush introduces legislation aimed at expanding access to emergency rental assistance funds MORE. It was clear during Kavanaugh’s confirmation hearing: An accusation of sexual assault can devastate a man’s life, family and future. Those who reject the account of his main accuser, Christine Blasey Ford, don’t suggest bringing legal proceedings against her. A sincere report of sexual abuse should not be penalized for being confused or mistaken.
Jeffrey Catalan and Julie Swetnick are different stories; in the wake of Ford’s accusations, Catalan and Swetnick claimed to have witnessed sexual abuse by Kavanaugh; Catalan quickly recanted. But the chairman of the Senate Committee that presided over Kavanaugh’s hearing has asked for an official review of the claim as a possible crime. In a NBC interview Swetnick contradicted a sworn statement to the Committee, which had implicated Kavanaugh in gang rapes. Harvard law professor emeritus Alan Dershowitz has called for Swetnick to be investigated and then prosecuted for perjury, if appropriate.
The debate on how to handle blatantly false accusations of sexual abuse has re-opened. Feminists argue that punishing any accuser chills the willingness of victims to come forward. Rule-of-law advocates counter that false accusations are not victimless crimes. In most cases a real person is named as an attacker and he or she confronts severe consequences. Genuine victims are also damaged by false allegations. Every lie casts a shadow of doubt over every future report of sexual assault. So legal disincentives should attach to the act of lying not merely to protect those falsely accused but also to encourage real victims to make reports.
False accusations on crime are everyday events
The danger of using the Kavanaugh hearing as a springboard for discussing false accusations is threefold: the session was highly politicized, with unrelated agendas attached; it was played out in the Senate, with the Supreme Court as a backdrop; and the true context of false accusations in everyday life may be lost. False accusations are not partisan, elite, or recent occurrences.
The recent re-evaluation grows out of a backlash that has raged on college campuses for over seven years. At some universities the battle has been much longer. In 2011, President Obama’s Department of Education’s Office of Civil Rights sent a letter to every college that received federal funding. To continue the flow of funds colleges needed to dilute the due process that on-campus hearings offered to students accused of sexual misconduct.
The purpose: To combat sexual misconduct and to protect victims who were overwhelmingly female. Accused students were denied legal representation and the presumption of innocence, as well as standard protections of justice such as facing an accuser and questioning witnesses. As a matter of policy, accusers were to be believed.
As a result, false accusations increased — at least, that was a widespread assessment. Legal experts signed petitions in protest; lawsuits proliferated from students who had been found “guilty;” high-profile cases of false accusations rocked the media.
Finally, new Title IX guidelines were recently drawn up by the DOE’s new administration and they will be unrolled shortly. The guidelines direct colleges to restore due process rights to students accused of sexual misconduct.
The human cost of false accusations
Petitions and guidelines do not capture the human suffering that caused a rebellion against the imperative to #BelieveWomen. For that real stories are required. Consider the Flood family of Pennsylvania and their teenage son, whom the media identifies as T.F.
According to a local newspaper five girls at T.F.’s high school “terrorized” him with accusations of sexual molestation. T.F. was fired from his part-time job, “tortured in school by the other students and investigators,” expelled and “forced to endure multiple court appearances, detention in a juvenile facility, detention at home, the loss of his liberty and other damages.”
Finally, the girls confessed to lying. Why did they? One explained, "I just don’t like him...I just don’t like to hear him talk…I don’t like to look at him." The girls have not been punished. Meanwhile, the boy is under the care of a psychologist and being schooled at home. Devastated by the experience, his parents are suing.
The Kavanaugh hearing brought the question of false accusations into people’s living rooms. That’s where the issue belongs because average and disadvantaged people need due process far more than the elite of society.
Average people have fought through centuries to gain and maintain these protections against imperious government and bad actors. The protections benefit both men and women because they stand in defense of common people. No sincere accuser, mistaken or not, should have anything to fear from impartial justice. But no intentionally false accuser should be able to bypass the protections of justice in their own self-interest.
#BelievetheWomen is the culmination of a push that began decades ago to achieve much-needed reform within the justice system. In the 1960s feminists crusaded against rape laws that brutalized women by treating them as though they were responsible for their own assaults. They weren’t and they aren’t, but the reform has gone too far. It is not an insult to ask for evidence when a crime is alleged. It is a sign of taking the accusation seriously and that’s what feminists crusaded for in the first place.
Wendy McElroy is a research fellow at the Independent Institute and the author or editor of nine books on women’s issues, government and liberty.