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The Problem with Making Rape Survivors Prove It

Hostility. Charges of obstruction. Even, in some cases, jail time—not for the perpetrators, but the victims. Is it any mystery why most sexual assaults go unreported?
December 6, 2022
The Problem with Making Rape Survivors Prove It
(Composite / Photos: GettyImages / Shutterstock)

Patty did everything right. As soon as the man who raped her while holding a knife to her throat left her apartment in Madison, Wisconsin, in the early morning hours of Sept. 4, 1997, she called 9-1-1, spoke to responding officers, went to a local hospital for a rape examination, and, in the days that followed, did her best to provide details to the detective assigned to her case.

But the detective, Tom Woodmansee of the Madison Police Department, doubted Patty from the start and quickly turned the rape investigation into an investigation of her. He thought her injuries (a bruised thigh and cuts to her hand, face, and neck) were too minor, and was suspicious about her inability to describe her assailant. (Patty had and still has advanced macular degeneration and is legally blind.)

At one point, in an interview in her apartment, Patty said Woodmansee was so displeased with her answers that he told her, pointing to the bedroom where the rape occurred, “If we have to go in there and role-play this thing, we will.”

About a month after the rape, Woodmansee summoned Patty, then 38, to an ambush interview at police headquarters, where he and another detective confronted her with their conclusion, based on a complete misreading of the evidence, that the rape “never happened.” Patty says Woodmansee told her, “You don’t act like a rape victim.” The detectives subjected her to interrogation tactics, including false representations, that are designed to break even hardened criminals, and often do.

Under this duress, Patty recanted. “What do you want to hear?” she asked the detectives. “If you’re going to drop this, I’ll say whatever you want.” This wording comes directly from Woodmansee’s report.

But as soon as she was allowed to return home, Patty went back to her original story, and began speaking out about how she had been pressured to falsely recant. She even went to the press—in this case, to me, in early January 1998, when I was news editor of the local weekly Isthmus. While I was working on what would be the first of dozens of articles on the case over the next decade, the District Attorney’s Office in Dane County, which includes Madison, decided to charge Patty with misdemeanor obstruction, for which she faced up to six months in jail and a $10,000 fine, for having reported that she was raped.

The decision to seek criminal charges, I learned years later, was instigated by Woodmansee after he learned that Patty had filed a complaint against him with the Madison Police Department, which ignored it. The prosecutor was Deputy District Attorney Jill Karofsky, now a Wisconsin Supreme Court justice. She said in court that the police “ought to be proud of what they did” to get Patty to confess.

Six months after filing criminal charges against Patty, the DA’s office dismissed the charges, due to the belated discovery of crime-scene semen that could not be accounted for. But police and prosecutors continued to insist that Patty had lied. In 1999, she filed a federal lawsuit against Woodmansee and others, which got thrown out of court. She lost her job. The judge ordered her to pay the defense’s legal fees, well beyond her means. Her attorney got this reduced to a small sum, which he paid himself, by agreeing to relinquish Patty’s right to further legal action.

And then, in 2001, the semen found at the scene was matched to a known criminal who was an acquaintance of Patty’s daughter. In 2004, he was tried, convicted, and sentenced to 40 years in prison, where he took his own life in 2019. I wrote a book about the case, which prompted the city of Madison to apologize to Patty and cut her a check for $35,000.

Karofsky also apologized for her “very misguided decision” and brought in Patty to talk to her law school classes; Patty backed Karofsky in her 2020 run for state supreme court. Woodmansee never apologized and was never disciplined for his mishandling of the case; in fact, he was promoted to lieutenant. Now retired, he works with the Smart Policing Initiative, a collaborative effort of the Bureau of Justice Assistance and state and local law enforcement agencies to teach “policing best practices.”

Patty’s story comes to mind every time I hear about efforts to take the edge off the U.S. Supreme Court’s ruling in Dobbs, which ended constitutionally protected access to abortion, by allowing exceptions in cases of rape and incest. In most cases, this comes with a requirement that these crimes of sexual violence be reported to the police.

This is the condition under which Republican Assembly Speaker Robin Vos recently announced he would back legislation to allow rape and incest exceptions in Wisconsin, where access to legal abortion has been effectively shut down. The only exception provided in the state’s 1849 anti-abortion law, which has sprung back into effect following the Dobbs decision, is to save the life of the mother. Planned Parenthood of Wisconsin has stopped performing abortions entirely.

Ian Henderson, policy and systems director of the Wisconsin Coalition Against Sexual Assault, objects to tying access to abortion to the obligation to file a report with the police: “If the only way to access abortion is for a survivor of sexual violence to report to law enforcement, they’re going to have to engage with a system that most survivors don’t want to engage with,” he told the Milwaukee Journal Sentinel.

According to U.S. Justice Department data crunched by the Race, Abuse and Incest National Network, more than two-thirds of all sexual assaults go unreported.

Laws requiring women seeking an abortion for rape or incest to file a report with the police to qualify for access to the procedure are in place in Idaho, Mississippi, and Oklahoma, which now otherwise have nearly complete bans. In Utah, a trigger ban now blocked by the court includes a reporting requirement.

In South Carolina, an earlier version of a bill to ban nearly all abortions contained an exception for rape and incest. But in these cases, according to the Associated Press, “the doctor would have to tell the woman the rape will be reported and her name given to the county sheriff within 24 hours of the procedure.” Another incarnation of the bill, which has not passed, required that DNA from the aborted fetus be collected for police.

A recent survey found that vast majorities of Americans—including 76 percent of Republicans and 94 percent of Democrats—support allowing abortions in cases of rape and incest. But this notion is a better survey question than it is a meaningful exception to laws that otherwise make abortion illegal.

National studies have consistently shown that the incidence of false reporting of sexual assault is extremely low, ranging from 2 percent to 10 percent, similar to that for other crimes. But the incidence of rape survivors not being believed or otherwise mistreated is a lot higher than that. While some aspects of Patty’s story make it extraordinary—notably, her courage in standing up to police—there is nothing at all unusual about people who report being survivors of rape being disbelieved, humiliated, and even charged with crimes.

In 2000, at Isthmus, I covered another Dane County case in which a rape survivor was criminally prosecuted. The girl, who I pseudonymously called Jenny Doe, had reported being raped at a friend’s house, ten days after her 15th birthday. Doe’s assailant, also a juvenile, largely admitted to the elements of the crime, including that he pressured her to have intercourse, ignored her repeated appeals to stop, and held his hand over her mouth to keep her from screaming; he was eventually convicted of sexual assault, though a lesser degree than was originally charged.

In her initial interview with police, conducted in the presence of her father, Doe said the boy had pushed her onto a bed; she later amended this to say she sat down as he pressed his hand on her shoulder. Citing this discrepancy, the Dane County District Attorney’s Office charged her with criminal obstruction. This prompted Doe’s father to beat her up while calling her a slut, for which he was charged with felony child abuse. The charges against Doe were thrown out of court by Judge Maryann Sumi, before the defense even presented its case. Despite Sumi’s forceful rejection, the DA’s office later said that, given the same set of facts, it would likely file charges against Doe again.

In 2015, the Marshall Project published a 12,000-word, Pulitzer Prize-winning article on how police in Lynnwood, Washington, came to disbelieve 18-year-old “Marie,” after she reported being raped by an intruder in her home in 2008. The cops picked up on minor inconsistencies in her account, summoned her to a surprise interrogation, and pressured her to recant, exactly as in Patty’s case. Marie was charged with false reporting, punishable in Washington with up to a year in jail. She pled guilty, agreeing to accept mental health counseling and pay $500 in court costs.

Two years later, police in Colorado identified Marc O’Leary as a suspect in a series of rapes; a search of his home turned up “trophies” from these crimes, including underwear from his victims and photographs that he had taken of them. One of the photographs was of Marie. He eventually pleaded guilty to her rape, for which he received a sentence of 28 1/2 years—on top of hundreds of years for his other assaults.

A 2016 article by Lisa Avalos of the University of Arkansas School of Law examines this case, along with Patty’s, as one of a several in which the rapists of disbelieved women were eventually convicted, after committing other crimes. The article, “Prosecuting Rape Victims While Rapists Run Free: the Consequences of Police Failure to Investigate Sex Crimes in Britain and the United States,” cited a 2020 finding by the Guardian that, in Britain, “at least 109 women have been prosecuted in the last five years for making false allegations of rape.” One such case concerned Layla Ibrahim, who in June 2010 was sentenced to three years in prison after police did not believe her (true, by her account) report of rape; she served more than a year.

These women were not impregnated as the result of being raped, but their ordeal stemmed from having made the mistake of turning to police for help. If rape accusations like these can lead to skepticism and abuse, even the filing of criminal charges, ones made by women trying to get an abortion that would otherwise be illegal are even more likely to be disbelieved.

Last week, the Republican attorney general of Indiana, Todd Rokita, asked his state’s medical licensing board to discipline the doctor who performed an abortion on a ten-year-old girl in Ohio, accusing him of failing to report the girl’s child abuse to Indiana authorities, and for allegedly violating her patient privacy by discussing the abortion with the media. The abuse was reported in the state where it happened, to both police and child protective services, and a 27-year-old man has been charged in her rape.

Rokita, who is not claiming that the abortion was illegal, is clearly trying to send a message that those who provide abortions, even to a ten-year-old rape survivor, can expect to be scrutinized and harassed.

In Wisconsin, the GOP’s Trump-backed candidate for governor, Tim Michels, grudgingly agreed late in the campaign to allow exceptions for rape and incest, something he earlier pledged not to do. He was defeated in the November 8 election by Democratic incumbent Tony Evers, who has vowed to veto any bill that adds only these exceptions.

“The people of Wisconsin chose to reject radical, divisive policies and reelect Gov. Evers [on November 8] because he’s among the 70 percent of Wisconsinites who believe abortion should be legal in all or most cases,” said his spokeswoman, Britt Cudaback.

There is also concern that amending the 1849 law would undercut the efforts by Evers and Attorney General Josh Kaul to have it declared invalid, through a lawsuit now making its way through the courts. “The potential for an additional exception for rape and incest would be really a manuever used to essentially kill the lawsuit,” Michelle Velasquez, director of legal advocacy with Planned Parenthood Advocates of Wisconsin,” told the Wisconsin Examiner. She said agreeing to amend the law would convey that the state agreed with its legitimacy.

Allowing women the chance to prove to the satisfaction of authorities that they became pregnant as the result of rape or incest is not reproductive freedom. It excludes the vast majority of those who wish to end an unwanted pregnancy, and it opens up those who do seek this protection to repercussions including potential prosecution. That is not a choice worth fighting for.

Bill Lueders

Bill Lueders, former editor and now editor-at-large of The Progressive, is a writer in Madison, Wisconsin.