The History Of The "False Rape Report" Goes All The Way To The Salem Witch Trials

In his criminal law treatise, The History of the Pleas of the Crown, Hale wrote of rape that while “most detestable," it is an “accusation easy to be made and hard to be proved” and gave a list of criteria to be considered before a woman were to be believed: her reputation and sexual history, the forcefulness of her rejection of the rape, and the amount of time between the criminal act and the accusation — sound familiar?

Comedian Amy Schumer was spot-on when she compared rape victim-shaming to the Salem Witch Trials in a 2016 interview with Charlie Rose. Hale, responsible for the legal framework for false reporting, is also credited with the Salem witch-hunts, trials, and executions. In 1658 he sentenced a convicted witch to hanging and executed two more in 1662 — setting legal precedents that informed the Salem witch trials and the persecution of women whom, Hale once wrote, could not “govern the greatness of [their] spirit[s].”

In a 1786 letter to James Madison, Thomas Jefferson wrote critically against harsh punishments for rape, asserting his belief that women make false accusations of rape in revenge against unfaithful or disinterested lovers.

Miller and Armstrong also document the work of John Henry Wigmore, citing him as the “twentieth century’s leading expert in the field of evidence”, co-founder of the Harvard Law Review, and 28-year dean of Northwestern University’s law school, whose ideas about women’s credibility and inherent mental instability, as well as the relevance of a woman’s social and sexual history in rape cases, still reverberate through courtrooms today.

You might be surprised to learn (or, maybe you won’t be) that in the mid-1970s the Playboy Foundation gave $10,000 and the use of the Playboy offices to produce and distribute the first-ever rape kits to U.S hospitals, ending a tradition of incomplete, incompetent, and haphazard evidence collection following the hospitalization of a rape victim.

Female police officers also make a difference. Miller and Armstrong cite a 2006 study of the largest U.S. police departments showing that every 1 percent increase in female officers on a police force resulted in a 1 percent increase in the number of rapes reported in that jurisdiction.

There’s currently no documented statistic on how many women have been accused of and/or charged with making a false claim of rape (though there probably should be.) However, since 1990 there have been four widely circulated media reports of rape victims who have actually been criminally charged with false reporting, including Marie — each woman facing both fines and the threat of jail time. Far more frequently, Miller and Armstrong report, police departments will simply dismiss rape allegations as false or baseless, often without even first interviewing the victim.

In A False Report, Miller and Armstrong detail a phenomenon called “downstreaming” — wherein each person involved in a rape investigation base their decisions and actions on their assumptions about how others will perceive the case, beginning with the victim. A victim is often concerned with how details like her attire or what she was drinking will impact her case (because, as we know, history has taught her this matters.) Police are skeptical about a prosecutor’s approach to a case with little or no physical evidence. Prosecutors are burdened with a jury’s perception of the victim and her testimony. In no other crime in our society is the burden of proof of innocence placed on the victim — and everyone from rape victims to agents of the justice system are deeply aware of this.

As #MeToo continues to gain steam, the idea of “witch hunts” has been increasingly invoked by victims, victims’ advocates, skeptics, the accused, and even the President of the United States — telling in that sort of “you’re damned if you do, you’re damned if you don’t” way that sexual assault victims are all-too familiar with. Many critics of the #MeToo movement have gone as far as to suggest that accusations have reached the fever pitch of the Salem witch hunts — an assertion that is both historically inaccurate and misunderstands the nature of a witch hunt in the first place. The Salem Witch Trials — and the European witch trials that preceded Salem — were inherently and almost exclusively about the persecution of a society’s least powerful members (slaves, girls and women, prostitutes, the homeless) and the removal or elimination of those who disrupted the status quo. Figures like Bill Cosby, Harvey Weinstein, Roy Moore, Matt Lauer, and others can hardly be considered powerless nor anything but beneficiaries of a status quo dependent on denying women positions of power.

Just as in the Salem Witch Trials, victims of sexual assault are victimized twice: first by a society that benefits from the powerlessness of women, and second by a criminal justice system that condemns them. Victims who don’t speak out, suffer their crimes in silence; those who do are re-victimized by varying degrees of false reporting accusations. Either way, women, literally or metaphorically, still hang. Miller and Armstrong's reporting takes one more step towards ending that.