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7 Yale J.L. & Feminism 243 (1995)
Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus

handle is hein.journals/yjfem7 and id is 249 raw text is: Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus?t Denise R. Johnsonff Since Biblical times, men have feared being falsely accused of rape.1 Indeed, the notion that women will lie about rape or sexual assault for any number of reasons is firmly entrenched in societal attitudes toward women and rape.' Whether the motive to lie finds voice in a woman scorned,3 in the sexually repressed and fantasizing woman who desires to be raped,4 or in the unchaste woman who seeks to mask her own promiscuity by crying rape, these myths have allowed the focus in rape cases to be placed on the victim's lack of innocence rather than on the guilt of the accused.5 The notion of a woman's supposed propensity to lie6 about sexual encounters invaded our jurisprudence long ago and provides the rationale for admitting prior false allegations of rape made by the complaining witness in rape cases.7 Despite the enactment of rape shield statutes,8 which were t False in one thing, false in everything. LATIN WORDS AND PHRASES FOR LAWYERS 90 (R.S. Vasan ed. 1980). ft Associate Justice, Supreme Court of Vermont. This article is adapted from a thesis submitted by the author in partial fulfillment of the requirements for the degree of Master of Laws in the Judicial Process at the University of Virginia. I am very grateful to the law clerks and interns who worked with me on this project. For concept development, I value my association with Vicki Henry; for tireless research, I thank Jennifer Wagner; for editing suggestions, footnotes and final format, I greatly appreciate the assistance of Johan Maitland and Carrie Legus; and for assistance in translating thesis to article, I thank Bridget Asay. I owe a special debt of gratitude to my husband, Thomas N. Wies, who advised and supported me throughout the project, and who willingly read more drafts of this article than he cares to remember. 1. SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 12-13, 25 (1975). Brownmiller details the story of Potiphar, an Egyptian whose wife sought the sexual favors of a slave, Joseph the Israelite. Joseph fled her advances, Potiphar's wife cried rape and Joseph was thrown into prison. Id. at 22. 2. Id. at 251, 415; SUSAN ESTRICH, REAL RAPE 45 (1987); Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013, 1039 (1991); James A. Vaught & Margaret Henning, Admissibility of a Rape Victim s Prior Sexual Conduct in Texas: A Contemporary Review and Analysis, 23 ST. MARY'S L.J. 893, 901 (1992). 3. Nor Hell a fury, like a Woman scorn'd. WILLIAM CONGREVE, THE MOURNING BRIDE act Il1, sc. 1, line 458 (1697). 4. BROWNMILLER, supra note 1, at 315-17, 322-33. 5. Torrey, supra note 2, at 1058; see id. at 1025-31, for a discussion of prevalent rape myths in addition to false reporting, such as that only women with bad reputations are raped; that women want to be raped and fantasize about it; and that women invite rape by their behavior and appearance. 6. One need look no further for proof of the currency of rape mythology than the 1991 Senate confirmation hearings on then Supreme Court nominee, Clarence Thomas. Anita Hill, Thomas's former employee at the Federal Equal Employment Opportunity Commission, accused Thomas of sexual harassment. The Lying Woman/Innocent Man stereotype was prevalent throughout the hearings as Hill was vilified as either a woman scorned or one whose mental imbalance had caused her to fantasize the verbal sexual encounters that she described. Ann Althouse, Beyond King Solomon's Harlots: Women in Evidence, 65 S. CAL. L. REV. 1265, 1277 n.33 (1992). 7. Perhaps the most frequently reported quotation is that of Lord Chief Justice Matthew Hale, a seventeenth-century jurist, who wrote that rape is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent. MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 635 (photo. reprint 1987) (1736). As antiquated as it may seem the warning remained in California's standard jury instructions for rape as late as 1973, with the accompanying direction that the complaining party's allegation was, therefore, to be viewed with caution. BROWNMILLER, supra Copyright © 1995 by the Yale Journal of Law and Feminism

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