In a comment on one of my Feministe posts the false reporting of rape was defined as not only those who intentionally file a false police report, it was defined as including all those who report any rape which is deemed by investigators to be legal.
The variance in the TYPE of “false” reports are going to be different between mugging and rape. If you only look at one subset of false reports–as you seem to be doing–then you will reach the wrong conclusion. The variance can probably explain much (though probably not all) of the difference in reactions to the accusations. [...]
It seems obvious that mugging reports will tend to match more accurately to the legal ability to convict the mugger. Why? Well, because mugging is fairly simple: you threaten someone or beat them up, and you take their money. [...]
Rape is different. Why? Because society’s expectation of what “rape” means is a BAD MATCH for the law. There are many, many, situations in which someone says (and feels) “I was raped” and the law does not agree. This in fact is one of the larger issues in rape prosecutions. [...]
So even though pretty much everyone who says “John raped me” will, in their heart, believe that this is true (just like everyone who says “John mugged me,”) for the rape victims this is less likely to be accurate.
This definition puts all the relevant criminal statutes first and any logical identification of the violation someone experienced second. It deliberately and selectively divorces the criminal justice system from the harm people experience at the hands of someone else.
This comparison ignores how often muggers don't need to threaten someone or to beat them up which places many muggers outside of the simple definition of mugging given in this comment. Mugging is viewed as simple because we choose not to needlessly complicate it.
If you are walking alone and two hulking men who look to be armed and dangerous ask you if you'd like to hand over your wallet, you are likely to take out your wallet and toss it in those men's direction.
Even though the muggers didn't actually take your money from you and instead picked your wallet up off the sidewalk, nobody is likely to view your positive response to a "question" as nullifying the possibility that a crime was committed.
When you report that you were mugged this report is not dismissed as a false one where your perceptions are deemed meaningless.
But if you are walking alone and those same two men ask you if you'd like to have sex and you fear that they will shoot you if you don't comply, the chances go way up that if you report having been raped that your report will be dismissed as a false one. Because, you know, rape is more complicated than mugging.
There is nothing objective about this difference in perception between mugging cases and rape cases. A mugger who asks if you'd like to hand over your wallet isn't described as exploiting a legal loophole. When this happens in rape cases society’s expectation of what “rape” means is not a BAD MATCH for the law as implemented. It is a perfect match.
If it were a bad match, the uproar would be immediate and non-ending until the law was changed or until the law was properly enforced.
Under this definition if there is a mismatch between the experience of being raped and the interpretation of the law, the interpretation of the law is always right. Yet our laws are designed by people who create and amend laws based on their judgments about who should be punished and how severely. They are also based on lawmakers assumptions about how different crimes are committed.
If lawmakers only say, "rapists use undeniable physical force or overt threats of physical violence" their laws will ignore all other rapists. Since most rapists are motivated not to go to prison for a very long time but worry that they will be reported, many of them will choose how and who they rape so that their crime won't instantly fit the lawmakers expectations if they are reported.
The easiest way to do this is to rape someone you know or someone you meet in a situation where consensual sex is seen as a possibility so that rape victims can be labeled as vindictive, delusional or unreliable. Sometimes this discrediting isn't even needed since rape laws can contain clear definitions of when rape is legal.
If rape laws and rape law enforcement are centered on the concept of the stranger rapist who immediately grabs the victim then investigators and others can refuse to acknowledge when a non-stranger rape allegation or even a stranger rape allegation meets all the legal standards for rape.
They can do this by summarizing the detailed account given by the rape victim in a way which wipes out all indicators that the reported actions meets the legal standards for rape. Physical force can be transformed in the summary into an embrace which could have been broken if the alleged victim really didn't want to have sex or it can be erased entirely. That whitewashed summary is then compared to the law. When it predictably falls short, a true report gets classified as false.
But not maliciously false.
Rather than being a generous classification, "not maliciously false" protects the person making the accusation against someone who reported being raped. They make these accusations, but never have to prove them or risk having these accusations proven to be factually false.
Unfortunately, when it comes to rape law the history of these laws has more to do with viewing certain rapes as not worthy of any punishment than it has to do with ignorance of the full scope of certain types of crimes. Hence, rape laws which specifically make it legal for people to rape their spouses. That can give us law-abiding sexual psychopaths -- as long as these people never do to strangers what they do to their spouses.
Not surprisingly, this approach lets many sexual predators continue their predation with the full support of the law and society when their intent and aim are identical to sexual predators who are subject to long prison sentences.
If a bunch of rape victims describe rape which happens in a way which isn't covered by the rape statutes (beginning sex with unconscious/sleeping person, for example) or which isn't designated as full rape in a particular jurisdiction the problem under this definition is with these "rape" victims. They are reporting when they have no right to report or they are reporting a more severe crime when they were actually the victim of a less severe crime.
This loophole in the Oklahoma rape law was closed only a couple of months ago. Before that a rapist couldn't be guilty of 1st degree rape if he raped someone who was unconscious or too intoxicated to consent. Raping someone through intoxication wasn't viewed as being as serious of a crime as raping someone through physical force.
The case which led to this change in law was a rape committed by a nurse against a drugged hospital patient. This rapist's criminal actions and intent are the same as rapists who go after those who become unconscious after drinking. But when the rape victim is a drugged hospital patient society suddenly understands that this rape was caused by the rapist's actions and choices, not the rape victim's.
This contrasting view of rape victims becomes clear when we look at how police and others talk about rape victims who have consumed alcohol. I can't imagine ever reading a headline which says, "Rape linked to woman being hospitalized," yet headlines such as, "More rapes linked to young women on drinking binges," are so common that people don't realize that this headline implies that women on drinking binges are committing rape.
These are apparently self-inflicted rapes. An increase in the number of these rapes must be caused by a change in the behavior of women and not an increase in the number of rapists who target women who have been drinking or an increase in the frequency of rape attempts by these rapists.
Once investigators view real rape victims as causing their rapes it's a small step to having these investigators decide on an individual basis that these rape victims are not victims of any crime. Hence, declaring their reports to be factually false.
This gives us a tidy feedback loop. 1) Blame rape victims for their rapes. 2) Deny these rapes on an individual basis seeking evidence that the victim could have prevented it if she/he really wanted to. 3) Blame these non-victims for any dismissive or hostile treatment non-blamed rape victims get from law enforcement since these non-victims are clogging up the system. 4) Repeat.
This definition of false report means that before anyone reports any crime they need to read their local statutes to make sure that there is a legal statute which covers this crime with no exceptions or loopholes. If what they report is deemed to be "no crime" they are false reporters and preventing investigators from taking those who report real crimes seriously.