The Accuser Becomes the Accused

I teach self-defense. I tell students our voice has power, and I believe it. I encourage survivors to tell their story because doing so is part of the way out from under the shame of sexual assault. There is strength in numbers, power in recognizing we are not alone, healing in telling others who respond with empathy and support. I have never advocated for or against reporting sexual assault to police. I know we must choose carefully who we tell because telling can be risky. We risk not being believed, we risk losing relationships with family and friends, we risk being fired from our job, we risk being blamed. I did not know we also risk going to prison.  

Earlier this month I posted the story of Arica Waters based on an article by Rachel Aviv in the September 2022 edition of The New Yorker. Waters, a first-time seasonal police officer with the Put-In-Bay police department, claims she was sexually assaulted by Jeremy Berman, a detective with the department. Three months after she reported the assault, she was arrested for “making false alarms” which means she reported an offence despite “knowing that such an offence did not occur.” She faced up to eighteen months in prison.  

What happened between Arica Waters and Jeremy Berman is often the way sexual assaults occur. Both had been drinking. She was initially impressed by Berman’s wealth and power, and she appreciated the attention her paid her. There was flirting and some level of consensual sexual activity between the two. But eventually Berman crossed the line. His persistence and pressure felt exploitative to Waters. She described it as “sexual assault due to job title.”

Men become ‘victims’

In the 1970’s, as the women’s movement began giving voice to the widespread problem of sexual assault, men began prosecuting accusers under legal statutes that make filing a false claim a punishable offense. In The Word of a Woman?, published in 2004, cultural historian Jan Jordan writes: “a new breed of rape ‘victim’ has been championed: the falsely accused man.[i]

The men’s rights movement, which sees men as an oppressed group, took hold in the mid-1970’s as a place for men to come together on issues such as father’s rights, alimony, domestic violence committed against men, and men’s health. Men’s rights activists have become increasingly concerned with what they perceive as a significant threat of being victims of false accusations of rape. They assert that 40 – 50% or more of rape allegations may be false. No legitimate studies support that claim.

It is difficult to pinpoint the exact percentage of false sexual assault allegations because of varying definitions of false reporting. Some jurisdictions file cases that law enforcement believes do not meet the legal criteria for sexual assault as false reports. These are cases in which an assault may have occurred but there is a lack of substantial evidence to prosecute. Other jurisdictions use a more accurate measure of identifying false reports to indicate they believe no crime occurred and the accuser intentionally misrepresented the incident. Even given these variations in tracking false reports, the National Sexual Violence Research Center (NSVRC) found that research indicates false reporting of sexual assault to be between 2 – 10%, and most studies land between 3 – 7 %. [ii]

A 2018 study identifies three main reasons why women file false rape allegations: to produce an alibi, to gain sympathy, or revenge. But reports are often labeled as false because law enforcement has a hard time building a case based on the survivor’s memory. Memory is tricky. The survivor may remember some details and not others or cannot recall events in the correct sequence. Or someone who has experienced trauma in the past may conflate that trauma with a current experience. After experiencing trauma, it is not unusual that memory is vague, has gaps, or is not entirely consistent with the evidence. Misremembering often comes from genuine confusion rather than malice.

Reluctance to report sexual assault

What the men’s rights movement fails to acknowledge is that an estimated 63% of sexual assaults are never reported to the police. Several researchers estimate the number of non-reported sexual assaults to be as high as 94%. According to RAINN, out of every 1,000 reports, only 50 lead to an arrest, only 28 lead to a conviction, and only 25 perpetrators (2.5%) ever spend a day in jail.

Most people are assaulted by someone they know, but non-stranger assaults are much less likely to be reported than stranger assaults. In cases like Waters’ where the perpetrator is known, alcohol is involved, and memory is fuzzy, there are several reasons a person may choose not to report. They often hold themselves at least partially responsible for the assault. They are concerned about charging someone they know with a crime. Sometimes they are unable or unwilling to identify what happened as an assault. And many survivors say they simply distrust the justice system.

Despite encouragement from friends, Waters was reluctant to report. She knew she was not what police view as a “good victim.” Her decision to speak up came only after she found out that Put-In Bay Island had been dubbed Roofie Island because it had a history of rapes of drugged or highly intoxicated women that the police had not adequately investigated. When Waters contacted Amy Gloor, a sergeant with the Ottawa County Police Department, she did not claim she had been raped. She said: “I really don’t know what to do, but it’s also like, I need to do something…something happened, you know, and I don’t remember all of it.”

It is unclear how far Gloor went in investigating Waters’ complaint. Waters willingly turned over her phone so Gloor could review her text messages from the time of the alleged assault. In doing so Gloor discovered some sexually explicit nude photos of Waters and went on to show them around the department, at one point saying to the sheriff: “You’ve got to see this. This is disgusting.”

The accuser becomes the criminal

Rachel Aviv was unable to find data, either at the state or national level, about the number of people who have been charged with falsely accusing someone of sexual assault. There is no standardized process for identifying false accusations or gathering and reporting data. Aviv spoke with Lisa Avalos, a law professor who studies false-rape prosecutions. Avalos said: “It absolutely happens throughout the country, but it’s an ad-hoc system.”

Aviv found that in Ohio, where Waters was charged, at least twenty-five people have been prosecuted in the past fifteen years, but these kinds of prosecutions go back decades. In a 1997 case, a woman was convicted of false reporting after she reported being raped by a man she met in a bar who then followed her home. The man argued that the sex was consensual. An appeals court overturned her conviction saying that whether or not you define something as rape depends on whose story you believe. The court wrote that the police “believed from the outset that the woman was lying and proceeded to investigate a claim against her rather than the reported rape.”

Aviv also refers to the 2016 case of eighteen-year-old Nikki Yovino, a first-year college student at Sacred Heart University in Connecticut, who claimed she was raped in the bathroom at a frat party by two football players. The detectives that interviewed her used the kinds of aggressive interrogation techniques they use to elicit information from suspected criminals. They lied to her, belittled her, framed the incident in their words rather than listening to hers. There was no question that the two football players had sex with her in the bathroom, but the detectives eventually got her to say that she had participated willingly. She was charged with making a false report, sentenced to a year in jail, and three years probation.

Much of the news coverage of Nikki Yovino’s case implies she is a narcissistic villain who intentionally ruined two men’s lives. Almost every account of her sentencing refers to her rolling her eyes as the verdict was read. Something to note about this case is the two football players, who were forced to withdraw from the university, were both Black. Those students lost their scholarships and lost their opportunity to play football. Their lives have been forever changed. There is every reason to believe that systematic racial bias matters when it comes to the adjudication of sexual assault complaints on college campuses. Would they have been expelled if they were White or would another action have been taken? The White woman accusing the Black man of rape still gets a lot of traction. Even so, something happened that bathroom that was hurtful and humiliating. The football players may have believed the whole incident was consensual but, if nothing else, two men having sex with a drunk women in the bathroom at a frat party, would warrant some kind of redress. The complicated interplay of race with sexual assault complaints requires sensitive to both issues. In Nikki Yovino’s case it appears everyone lost.

There is a lot to lose

Filing a false police report can have lasting consequences for the accused including loss of family and social ties, loss of reputation, loss of a job, and incarceration. False reports cost money to investigate and create doubt about legitimate reports. To accuse someone of a crime knowing the crime didn’t happen should be taken seriously and prosecuted.

But neither Arica Waters’ or Nikki Yovino’s accusations are so cut and dry. They look like many sexual assaults; messy and complicated by alcohol. Both women were vulnerable, and both were with men they perceived as more powerful. Even if law enforcement didn’t find enough evidence to move forward with charges, it is an impossibly long stretch to say nothing happened. Survivors hear stores like these and decide I’m not calling the police if I am raped. For every report that is not filed, for every survivor who is not believed, a rapist remains free and remains a threat.

Jeremy Berman has been accused of sexual assault by two other women, dating back to 2008, in circumstances similar to Waters’. Both women were drinking and both thought they may have been drugged. The first woman, who claimed she was raped and molested by Berman and a friend of his while she was unconscious in a hot tub, dropped the charges. The second woman alleged she was assaulted in 2014 but didn’t come forward until 2021. She only learned about Arica Waters’ case after she filed her complaint. Her complaint was investigated and dismissed. It seems unlikely that three women, who never met each other, who live in different parts of Ohio, who all describe similar experiences with Jeremy Berman over a 22-year period, are all lying. It seems unlikely there weren’t other victims who never came forward. And it seems unlikely that Berman, always vindicated, won’t continue to be a predator.

After MeToo

Briefly, in 2017 after the MeToo movement took hold, I felt a huge weight lifted off my shoulders. For me, growing up female has meant surviving male violence at almost every phase of my life, as a child, a teen, a college student, and a young mother, at the hands of strangers, acquaintances, and partners. Some attacks were extremely traumatic and terrifying, others confusing and hurtful. All left their mark. Most women I know have similar stories, but we rarely talked about it. It was just the way life was for women and there was no reason to think the men who hurt us would ever be held accountable. Then, in 2017, we did talk about it. And we began holding perpetrators to account. We watched Harvey Weinstein led off to prison after blatantly abusing women with impunity for more than 30 years. A public reckoning that represented a small measure of justice. We breathed a collective sigh of relief.

Then came the collective eye roll. Everyone had heard enough. The MeToo imperative to believe survivors was met with a counternarrative – survivors are vindictive, “professional victims” who are desperate for attention. Men’s rights advocates portray champions of sexual assault prevention as whiney feminists who conflate the slightest offence with an assault.

Change is unsettling. It is especially unnerving for everyone who feels they have something to lose. Men have enjoyed a level of safety women have never had. They have enjoyed a level of entitlement and permission to explore their sexual desires without concern for the harm they may cause, often not even aware of the harm they cause. The uncharted territory we are in today asks that everyone reconsider drunken group sex in frat party bathrooms and alcohol fueled hot tub sex with strangers. It asks that we look at what consent means, especially in the context of power. It asks that some people rein in their self-absorbed quest for pleasure and consider their impact on others. And it asks that our criminal justice system raise the bar to demand a more educated, professional, unbiased approach to addressing sexual assault.

Where does it leave us when we lose faith in the criminal justice system? There are good cops, and investigators, and lawyers, and judges. But it is a crap shoot. You just might get Seargent Amy Gloor on the case who thinks you are “disgusting.” We are finally focusing on police use of excessive force that is costing Black people their lives. But the force and carnage continue. We haven’t even begun to look at how the mythical specter of the manipulative, vindictive woman affects all aspects of sexual assault investigations. The justice system grinds along, protecting its own, with an attitude that they are largely unaccountable to the public they are sworn to protect.

I don’t know how to repair a frayed criminal justice system, but it has to happen. To have no protection under the law means chaos and a complete abandonment of the most vulnerable. Rebuilding trust is going to require a lot of education, transparency, and a huge change of heart. I think that change will require sustained pressure from an engaged public who believes it is possible.

Your voice has power.
Experience the power of speaking up anytime, anywhere, every day.

In the meantime, six years after MeToo exposed the epidemic of sexual assault world-wide, people may be tired of hearing about it, but we should not be silenced. We cannot go back. Despite the risk, we must move forward doing what we have always done, assessing who to tell, how to tell, and finding ways to keep ourselves and each other safe. As a self-defense teacher I will now have to include one more piece of information in our discussion with survivors – it is possible to go from being the accuser to the accused. It is not acceptable, but it is possible.


Endnotes

[i] Joanna Bourke, a British historian of rape, writes about false allegation statutes being adapted in the 1970’s to combat allegations of rape. Her most extensive work is Rape: A History from 1860 to the Present, published in 2008.

[ii] The Southern Poverty Law Center, in an issue of their magazine Intelligence Report, counters a number of false claims the Men’s Movement has made against women. The article by Mark Potok and Evelyn Shatter was published in March 2012.

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