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How hard would it be for me to defend an accusation of rape from my past?

By Mark S. Lawson - posted Thursday, 15 May 2003

The accusations brought against the Governor General, Peter Hollingworth, that he raped a women 40 years ago have made me wonder whether there is any way I could suffer the same fate.

Of course I am an obscure, impoverished journalist with no particular prospects of greatness, not a Governor General, and so an unlikely target for accusations - true or false. But what if, say, I shot to fame through a best-selling novel (okay, we all have our dreams) and suddenly my name and picture was in all the papers? What if, then, a woman suddenly made a legal claim complete with a statement that I date-raped her in Melbourne in the late 1970s or 1980s?

Of course, I have never forced myself on anyone and, as far as natural selection is concerned, I was frequently selected out. In fact, I am sure that at one point I was the most dumped guy in Melbourne. But the flip side to that rather sad statement is that I did go out with a number of women 20 years and more ago whose names I now cannot remember. (They would have forgotten my name faster than I forgot theirs.) So if someone turned up claiming that I committed a ghastly offence on her person from way back then, I would be unable to say with certainty even whether I knew her or not, especially if she had worked somewhere I had worked or had been around in the same groups. This problem becomes worse if, say, my accuser is someone I did go out with a few times before being forcibly selected out for the undoubted "drop kick" that I am.


Then the accusation becomes almost proven until I can present evidence to the contrary. After all, in some circles, all men who date women are rapists-in-waiting. The woman may say she was too frightened of me to say anything at the time (laughable to anyone who knows me) or, more plausibly, that she was too disgusted by the incident and wanted to put it behind her but seeing my picture in the paper had brought all the memories flooding back.

The sad part is that the woman may well have been violated by someone after I knew her and, after 20 years of trying to forget and convincing herself nothing could be done, she belatedly realised that it is relatively easy to consult with a lawyer. Increasing competition in the law means that lawyers will often make their first consultation free and will only ask for payment if any subsequent action is successful.

Initially, my would-be accuser may have little idea who did the deed. After 20-25 years the sequence of events, let alone the name, are all likely to be hazy memories indeed, despite the ghastly nature of the act (assuming my "victim" did not write it down afterwards). But wait, what is this picture of a successful author in the paper? His picture brings back memories! She certainly recalls that she went out with him and that he was a drop kick. That must be him! At that point the memories of going out with me and being raped would fuse, and my "victim" would become genuinely convinced I was her attacker.

Fortunately, it is now passé to try to claim that the rape is a memory "recovered" during therapy. But as that craze for making bizarre allegations after therapy proved, human memory is fallible, extremely malleable and subject to suggestion. Scientists - notably Professor Elizabeth Loftus, a psychologist at the University of Washington - have found that they can deliberately implant false memories by making the right suggestions. In one famous experiment (Loftus, E.F. & Pickrell J.E. 1995, The formation of false memories. Psychiatric Annals, 25, 720-725) they were able to implant false memories in volunteers of being lost in a shopping mall when they were children. Those implanted memories were, to their possessor, just as real as the memories of events that actually happened - just as those with recovered memories thought those memories were real, even vivid.

If any further illustration of the difficulties of bringing evidence after all this time is required, then I need only point to the Special Investigations Unit set up by the Australian Government in 1987 to prosecute war criminals. For various reasons the unit went after suspects from the second world war who now happened to be living in Australia, but failed to gain a single conviction, chiefly due to the problems of trying to bring prosecutions 50 years after the events in question. The disbanded unit is now chiefly remembered for the final results of its efforts to prosecute one Ivan Polyukhovich for events in the Ukraine for 1942. The jury in that trial, which concluded in Adelaide in 1993 after years of proceedings, stayed out for just one hour before declaring a Not Guilty verdict.

As for myself I am glad that I am long married and out of the dating scene, that I am not gay and have never worked with youths. For that matter I am never likely to have a best seller.

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About the Author

Mark Lawson is a senior journalist at the Australian Financial Review. He has written The Zen of Being Grumpy (Connor Court).

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