Law professor Sherry F. Colb writes: My view is that we have a great deal more to worry about from stranger-rape victims who inadvertently misidentify their assailants than we do from acquaintance-rape victims who invent a rape that did not take place. One’s view on the risks of believing the sworn testimony of an accuser over that of an accused will depend on how frequently one thinks that such false claims of rape are made. If, as Lord Matthew Hale believed, “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,” then we would want to be very cautious about allowing any serious consequences (such as the loss of parental rights or of liberty) to turn on a so-called “swearing contest” between the alleged victim and the alleged perpetrator. ...What she is trying to say is that moms should be able to win sole custody by making a rape claim to a family court judge years later.
Furthermore, it seems fanciful to imagine that many mothers will falsely accuse the fathers of their children of rape simply to avoid the prospect of paternal visitation. And to the extent that some mothers actually do so, placing a burden on the woman’s side of the case to prove the rape by a preponderance of the evidence will permit the fact-finder to reach the more-likely-than-not correct resolution to the custody and visitation questions.
Politicians get in trouble for saying this, but pregnancy rarely results from a genuine rape. The woman reports it promptly to police, gets a medical exam, and gets treatment to make pregnancy impossible.
Regardless, criminal accusations do not belong in family court. There is a reason that criminal and civil courts are separate. If someone wants to make a charge of domestic violence, rape, or any other crime, let her make it in criminal court where the object is guilt or innocence.
The trouble with family court judges is that they have no idea whether the accusations are true or false, but give child custody to the mom as being prudent in case they are true. The women thus has a big incentive to make false accusations, and she almost never suffers even if she is proved wrong. I have seen women benefit again and again from ridiculously implausible accusations with no evidence.
Colb says "fanciful to imagine"! She should just drop into her local family court where moms make false accusations to win custody every day.
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