By: Vincent Imhoff, Esq. & Dan Rhoads
Cassandra was a prophetess who could not be believed. Apollo had given her the gift of foretelling the future, and the gift could not be revoked. When she broke Apollos heart, he quite cleverly robbed her of her credibility (Hamilton). So, when Cassandra predicted her own demise, no one rushed to help.
Cassandras curse is an apt metaphor for the skepticism that often meets allegations of both rape and sexual harassment. The incredulity toward complainants is an acknowledged reason that many rapes are never reported. The reasons for the curse are likely more mundane than that it is some deific punishment (Romner). Scholars who point to the heritage of coverture (Schafran) and to legal attitudes that accord less value to the speech of socially subordinate groups (Hunter) have identified significant explanations for the phenomenon. Whether or not false allegations of rape also contribute to the plight of real victims is worth examining.
An Extraordinary Crime
Rape can be both a touchy issue to discuss and a complex charge to defend for several reasons. The act of rape is simultaneously intimate and unspeakably violent. It is the only form of violent criminal assault in which the physical act accomplished by the offender is an act which may, under other circumstances, be desirable to the victim (Shapo). Eyewitnesses are very rarely present.
The laws concerning rape are unique. The overwhelming majority of rape statutes on the books do not expressly state any generally applicable mental state (LaFave), and most American courts have omitted mens rea altogether (Estrich). Because a rape trial is a contest of credibility and the decisive issue is what the victim did or did not do, it often appears that the complainant, not the defendant, is on trial.
Statistics about False Allegations
The data on false allegations of rape are contentious. Alan Dershowitz has said that, according to FBI surveys, eight percent of all rape charges are completely unfounded (Dershowitz) (compared to 1.6% of assault charges). Other studies with different methods have placed the percentage as high as 60% (Zepezauer). Of course, there are lies, damned lies, and statistics; and the advocates for rape victims are highly skeptical as to the probability that a woman would ever bring a false accusation. Regardless of the precise percentage, a general awareness of insincere complaints of rape is prevalent.
Cassandra Down Under
In the early 1990s, some jurists in Australia might have crossed the line between intelligent Bayesian and insensitive sexist. At the South Australian Supreme Court, Justice Derek Bollen, after giving jury instructions favorable to the defendant, opined about womens propensity to allege rape falsely. He then told a lengthy story, which he claimed to be true, about a woman in England who had gone to great lengths to make a series of false accusations of rape. His brethren, Judge John Bland of the Victoria County Court, said while sentencing a perpetrator, in common practice . . . no often means yes (Mack). An outcry ensued. The cases were appealed, and the comments were censured. But, in the immortal words of Justice Cardozo, you cannot unring a bell.
If any such comments have come from an American bench, they have not been well publicized. But it is possible that some American jurors, operating on the same rationale, silently share these beliefs. Rape charges that turn out to be false certainly do nothing to accelerate progress in attitudes.
Drugs and Alcohol
Liquor and drugs may be potent agents of incapacitation, but they are also common ingredients of the ritual of courtship. The traditional routine of soft music and wine or the modern variant of loud music and marijuana implies some relaxation of inhibition. With continued consumption, relaxation blurs into intoxication and insensibility. Where this progress occurs in a course of mutual and voluntary behavior, it would be unrealistic and unfair to assign to the male total responsibility for the end result.
Model Penal Code
The presence of intoxicants complicates matters further. In the most sober rape cases, the jury has the unenviable task of determining which party is more credible about what he or she was thinking during an intimate time in the past. When one or both of the parties are intoxicated, both issuescredibility and intentbecome even more difficult to judge.
Most courts distinguish between defendants who administered the drug to the alleged victim and those who did not. A further distinction is made between administering the drug with and without the alleged victims consent (LaFave). These distinctions make sense in grading the seriousness of the offense, but they all share a common flaw.
In any of the above circumstances, it is possible that the victim consented to sex and gave every indication that the encounter was desired, and even that the accused was too intoxicated to know that his presumed partner was legally incapable of consenting. If the victim later regrets the encounter or cannot remember clearly the circumstances attending it, only evidence of intercourse is necessary to convict because rape is a general-intent crime.
Rape is a difficult subject to discuss and an even more difficult crime to defend. Many aspects of the law of rape are inconsistent with other crimes and even counterintuitive. The most important evidence at trial is testimonial, and disinterested witnesses are usually nonexistent.
For the foregoing reasons, rape has historically been considered an easier crime to allege than it is to defend. Due to a statistically murky track record, rape accusers are often viewed skeptically. Victims of rape are not helped by allegations that are ultimately proved false. It is likely that perceptions resulting from false allegations contribute to Cassandras curse.
Dershowitz, Justice, Penthouse, September 1991, at 52.
Estrich, Rape, 95 Yale L.J. 1087, 1097 (1986).
Hamilton, Edith. Mythology. Signet: Chicago 1969. p. 202.
Hunter, Gender in Evidence: Masculine Norms vs. Feminine Reforms, 19 Harv. Women=s L.J. 127, 155 (1996).
LaFave, Criminal Law, 4th ed., at 853 (2003).— at 866 (2003).
Mack, Gender Awareness in Australian Courts: Violence Against Women, 5 Crim. L.F. (1995).
Model Penal Code ‘ 213.1, Comment at 315 (1980).
Romner, The Cassandra Curse: The Stereotype of the Female Liar Resurfaces in Jones v. Clinton, 31 U.C. Davis L. Rev.123 (1997).
Schafran, Credibility in the Courts: Why Is There a Gender Gap? Judge J., Winter 1995, at 5.
Shapo, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va. L. Rev. 1500, 1503 (1975).
Zepezauer, Believe Her! The >Woman Never Lies= Myth, Institute for Psychological Therapies Journal, Vol. 6: 1994.