The Chilling Effect: The Politics of Charging Rape Complainants with False Reporting

Although legal scholars have addressed the persistent failure to effectively investigate and prosecute rape despite decades of attempts at reform, the issue of prosecutors going so far as to bring false reporting charges against disbelieved sexual assault victims has received scant scholarly attention. This article calls attention to this particularly disturbing externality of the mishandling of rape cases. First contextualizing false reporting prosecutions of rape victims, the article demonstrates that such prosecutions are a direct outgrowth of poor quality, under-resourced police rape investigations. These prosecutions move forward as a result of several systemic problems: procedural irregularities and informal policies that are designed to benefit police and prosecutors at the expense of sexual assault victims; an embedded bias within the legal system against victims of sexual assault; and the complexities involved in properly investigating sex crimes.

The article also offers a comparative perspective by examining a policy of the British Crown Prosecution Service—which actively encourages the practice of bringing false reporting charges against rape complainants who are suspected of lying—and presents a case study of a woman prosecuted under this policy. Such a policy is contrary to widely recognized obligations under human rights conventions to guarantee equal, nondiscriminatory treatment and to avoid subjecting victims of sexual assault to secondary victimization and to cruel or degrading treatment. The article concludes by offering practical recommendations to prevent unwarranted prosecutions of disbelieved rape victims.