Fake Sexual Assault Claims in Australia

When Allison Louise Reardon accused a taxi driver in Perth of sexually assaulting her, the police did their duty and conducted an investigation. Fortunately for the innocent driver, the police reviewed video evidence and determined that the accusation was false. Reardon was upset that the driver took a longer route to her destination than she deemed appropriate, and apparently concocted the assault allegation to get the attention of the police, who might not otherwise have responded to her complaint.

Advocacy groups for sexual assault victims contend that false claims of sexual assault are rare. Studies are commonly quoted to support that proposition that only 2% to 6% of sexual assault allegations are untrue. The studies suggest that those statistics might even be inflated, because they include cases in which assault reports are classified as unfounded because they are unsupported by evidence. The absence of corroborating evidence, however, does not mean that the sexual assault didn’t happen.

What the studies don’t mention is that the opposite is also true. The accusation itself is the only evidence needed to substantiate a sexual assault. If a false accusation is credited as true, a sexual assault will be regarded as “founded” even if it never happened. Given that an uncorroborated accusation might or might not be true, it is difficult to evaluate statistics concerning false reporting of sexual assaults.

Uncorroborated Accusations

In the distant past, courts would not permit an accused to be convicted of sexual assault unless the accusation was corroborated. That rule had the unfortunate effect of allowing many perpetrators to get away with their crimes, since sexual assaults are not usually witnessed by third parties, and even when the assault is accomplished by force, there are not always physical injuries that corroborate the accusation.

The modern view in Australia is that sexual assault crimes, like other crimes, can be proved with the uncorroborated testimony of an alleged victim. It is up to the jury to decide whether that testimony is sufficiently credible to prove guilt beyond a reasonable doubt.

Until recently however, Australian courts routinely warned juries about the danger of basing a sexual assault conviction on uncorroborated evidence. Advocates for sexual assault victims criticized the warning as unfair because it suggested that those victims are unworthy of belief. Some scholars attributed relatively low conviction rates in sexual assault cases to those warnings. Since it is impossible to know what the outcome of a trial would have been without the warning. However, those concerns are necessarily speculative.

Reforms in Australian Sexual Assault Trials

It might be sensible to warn juries in every criminal trial about the danger of basing a conviction on uncorroborated evidence, regardless of the crime. Australian jurisdictions instead enacted reforms that jettisoned the mandatory warning in sexual assault cases.

In NSW, judges are no longer required to warn a jury that it is dangerous to convict an accused on uncorroborated evidence. Nor are NSW judges required to call a jury’s attention to the absence of corroboration. Judges retain discretion, however, to give such instructions and to make such comments as they deem appropriate, in light of the evidence in each case.

A few Australian states and territories have gone farther by enacting reforms that forbid judges from warning jurors or suggesting in any way that an alleged sexual assault victim might not be a reliable witness. Critics who urge further reforms have objected to relatively innocuous instructions that tell a jury to scrutinise the alleged victim’s testimony with great care. We should expect juries to scrutinise the testimony of every witness with great care. It might be fair to give such an instruction in every case, regardless of the crime.

Underreporting, False Reporting, and Conviction Rates

A recent news story suggests that only a small percentage of reported sexual assaults result in a conviction. There may be many explanations for that statistic. In some cases, the accusation may have been withdrawn. In others, the accuser may have been unable to identity an assailant. And in some, the police may decide not to pursue a charge.

The story points to research suggesting that police do not take sexual assault allegations seriously when the victim was on a date with the accused, when she had been drinking, when there is no evidence of a physical injury, and when there is no proof that she “fought back.” That’s unfortunate, because none of those factors are proof that a sexual assault didn’t occur. To the extent that police officers are dismissive of assault allegations because they believe a woman “invited” a sexual encounter if she went on a date and had a drink, officers need training about the reality of sexual assault. The Australian Law Reform Commission has endorsed a move toward specialised police who have been trained to handle sexual assault accusations.

Sexual assaults are underreported, in part because victims worry that the police won’t believe them. Some advocates for victims have suggested that the number of underreported sexual assaults vastly exceeds the number of falsely reported sexual assaults. Perhaps that’s correct, but the comparison sheds little light on how police, lawyers, and juries are to tell the difference between an accusation that is true and one that is false. The implicit suggestion that “all accusations should be taken as true” so that abusers don’t “get away” with their crimes is contrary to fundamental principles of Australian justice that protect every accused individual from the risk of a wrongful conviction.

Reasons for False Accusations

The Australian Institute of Family Studies (AIFS) cites studies suggesting that 2% to 10% of sexual assault accusations are false, and notes that the 2% estimate, while widely cited, has been discredited. For the reasons discussed above, even the 10% estimate might be too low, because researchers have no reliable way to determine whether accusations of sexual assault are true or false.

Many advocacy groups, while well-intentioned, work diligently to convince the public that fake sexual assault claims are rare. The AIFS contends that a “focus on trying to establish the prevalence rate of false claims of sexual assault is detracting from a deeper analysis” of the problem, including the reasons that people make false reports and the reasons that accurate reports are perceived as being false.

People make false reports of sexual assault for many reasons, including:

• A desire to gain an advantage in a child custody dispute.
• A desire for revenge against a partner for reasons unrelated to sexual conduct.
• A desire to force a partner to change residences.
• A desire for attention or sympathy.
• Embarrassment at having consented to sex
• Fear of how others will react to a potential pregnancy.
• Mental illness.
• Lack of understanding about the definition of sexual assault.
• Misidentification of the assailant.
• Pressure by peers who believe that the accuser would not have voluntarily consented to sex.

In the end, it is impossible to know how prevalent fake sexual assault claims are in Australia. But we know that not all accusations are true, and we know that juries and the requirement of proof beyond a reasonable doubt are essential protections for Australians who are accused of sex crimes. Each case deserves to be decided on its own merits. That’s why criminal defence lawyers are essential guardians of freedom in Australian society.