Reigniting he said-she said debate

Cathy Young is a regular contributor to Reason magazine and the website Real Clear Politics.

The recent questions about the charges against Dominique Strauss-Kahn, the French politician and former head of the International Monetary Fund accused of sexually assaulting a maid in a Manhattan hotel in May, have sparked a new round in the long-standing and contentious debate about truth, belief and credibility in rape cases. While we do not know the facts of this particular case, the debate reaches far beyond them.

Strauss-Kahn's supporters, who deplored his arrest as a rush to judgment based on one woman's claim, are feeling vindicated by recent reports that the case is near collapse due to serious problems with the accuser's reliability. Most of these questions are not related to the case itself but to false statements in her immigration papers. But she is also said to have discussed profiting from her charge against Strauss-Kahn in a telephone conversation with a jailed drug dealer.

Those who support the accuser counter that a woman shouldn't have to be a paragon of virtue to be recognized as a rape victim and that the maid is a victim of an all-too-typical smear campaign used to discredit women who bring charges of rape, particularly against powerful men. Branding her a liar and a slut, they warn, will inevitably discourage other sexual assault victims from coming forward.

The origins of this debate go back to the 1960s and '70s, when the rising feminist movement challenged prevailing attitudes toward complainants in rape cases. In many states, the law required the woman's testimony to be corroborated by other evidence such as physical injury. Jurors were commonly advised to treat the woman's testimony with special caution, since a charge of rape was "easily made and difficult to defend against" (the so-called Hale warning, based on the dictum of 17th century British jurist Lord Matthew Hale). Evidence of "unchaste character," which could include using birth control or visiting bars alone, could be invoked to impeach the accuser's credibility or suggest consent.

The feminist-driven legal reforms of the 1970s and '80s brought about a dramatic change. The corroboration requirements and special warnings were dropped, and rape shield laws were enacted to prevent the defense from bringing up the woman's sexual past. But many believe that the pendulum has swung too far -- from misogynist biases against women who accuse men of rape, to equally unjust and sexist biases that disadvantage accused men.

In their zeal to counter stereotypes of neurotic or vindictive women who "cry rape," feminists have often promoted an equally sweeping stereotype: the dogma that women who claim they were raped don't lie. But the fact is that some do -- for reasons ranging from revenge to mental illness to covering up a consensual encounter. While sexual-assault victim advocates assert that only about 2 percent of rape accusations are false, the same as for other violent crimes, available data from academic research and journalistic investigations indicate considerably higher rates -- from 6 percent to a startling 40 percent.

In her 1993 book, "Sexual Violence: Our War Against Rape," Manhattan sex crimes prosecutor Linda Fairstein wrote, "Thank goodness, [the victim's] testimony -- when it is credible -- is all that is needed to convict a rapist, as it is any other criminal."

Yet in the same book, Fairstein described a case in which a woman who gave a highly convincing account of being raped by her boss while working late was exposed as a liar when the boss was able to produce evidence of their past affair, including witnesses who had seen the alleged victim in his hotel room in a negligee. The woman eventually admitted that she was seeking revenge against him for ending the relationship. Ironically, had the accused man been more discreet, her "credible" testimony might have been enough to send him to prison.

Nobody knows how many men end up behind bars due to rape hoaxes; we know only about the ones who are eventually exonerated. In 1991, Washington state resident James Liggett was convicted of raping a woman he had met through a dating service and spent a year in prison before her story fell apart -- both because she made a suspiciously similar charge against another man and because a private detective hired by Liggett unearthed her history of unstable behavior, including dubious claims of rape.

Falsely accused men who are never convicted may still face a long, costly legal battle, and sometimes detention without bail. And even a brief ordeal may be brutally humiliating. In 1997, a New York businessman, Paul Krauth, was charged with raping a woman he had met after an online correspondence. His arrest was reported in The New York Times, with a photo of Krauth in handcuffs. A few days later, the charges were dropped after it turned out that the "victim" had left a message on his answering machine thanking him for a wonderful evening. The woman's name was never released.

A sexual assault case is always a painful experience for all involved. Tactics challenging the alleged victim's believability may seem cruel; but unless they are dishonest, to bar them would strip the accused of the basic right to a defense. In the words of Columbia University law professor George Fletcher, "It is important to defend the interests of women as victims, but not to go so far as to accord women complaining of rape a presumption of honesty and objectivity."

The sympathy and support extended to rape victims is an important gain of the feminist movement. Yet in the process, we must not lose sight of the rights and the dignity of accused men -- who, under the cornerstone principles of our legal system, are entitled to the presumption of innocence.