Wisconsin recently introduced legislation that would prohibit a sexual assault victim from being asked to take a polygraph examination. Many states have already passed such a law. Clearly doubting the veracity of a sexual assault victim's claim is not a politically popular position. Victim advocate groups argue that the polygraph further traumatizes the sexual assault victim. It is interesting to note that a robbery victim is not afforded the same consideration. Neither are the parents who claim that their child was abducted. In fact, the FBI recommends that in such cases one of the first investigative steps should be to administer a polygraph examination to the parents. Nonetheless, many agencies are legally prohibited from utilizing the polygraph technique to ascertain the truthfulness of a rape victim.

Certainly the majority of reported sexual assaults represent legitimate claims. Yet in our office each year, we identify women who have completely falsified a report that they were raped. We can add to that list a significant number of women who claimed to be raped when, in fact, the sex act was consensual. The most frequent motives for a false claim of rape are to gain attention or to explain away a pregnancy or sexually transmitted disease. In some cases we have encountered a woman who was caught engaging in a consensual sexual act and, to save face, reported that she was being raped. On rare occasions we have encountered a false claim of rape motivated through revenge against the named rapist. Regardless of the motive, false claims of sexual assaults have cost departments hundreds of wasted hours looking for a rapist that does not exist. In some documented cases, innocent defendants have been convicted based on the alleged victim's identification of the man even though she was never raped.

Sexual assaults can be divided into two broad categories. In the first, a specific person is named. Often these will involve acquaintance rapes. In these cases the named suspect will either say that he did not have sexual intercourse with the victim or that it was consensual. This is an ideal situation for the accused man to take a polygraph examination. The problem is that too often the suspect is immediately arrested based on the victim's complaint. Because of the arrest and required Miranda warnings, the suspect is likely to ask for an attorney and no attorney would agree to a polygraph examination conducted by a police agency without first having his client examined privately. In most cases, therefore, we recommend that the suspect not be arrested, but rather be voluntarily interviewed, at which time a polygraph examination may be offered as a way to quickly resolve the issue.

The second situation is not so easily resolved. In this case the victim reports that she was sexually assaulted but no specific suspect is identified. These reports can be classified on a continuum of being highly probable, probable or suspicious. Highly probable reports will be supported with clear physical evidence of rape (vaginal tearing, bruising, seminal fluid, foreign pubic hair). In these cases the victim's account should be accepted at face value. In addition, DNA analysis should be conducted on foreign body fluids or tissues. Stranger rapes tend to be a serial crime and the growing database of DNA samples collected from sex offenders may lead to an easy identification of the rapist.

The probable rape complaint lacks compelling physical evidence but contains characteristics that are frequently present in factual reports. The reason for the lack of physical evidence is often because the victim delayed reporting the rape. There are a number of reasons why legitimate rape victims do not report the assault in a timely manner. Some are too embarrassed to come forward. Others experience guilt, believing that they somehow invited the attack. During the victim's interview it is valuable to ask, "Why did you decide to report what happened to you now?" A victim who is falsifying the rape claim is often unable to identify any specific reason for her delayed report. On the other hand, a legitimate victim is often able to articulate a specific reason for the delayed report. In some cases this may relate to emotional or physical after effects of the rape, such as nightmares, pregnancy or contracting an STD. In other cases the victim may refer to a conversation with a confidante who eventually convinced her to report the attack. It is highly suggestive of a legitimate claim when a victim reported the assault to a close friend or family member shortly after its commission.

Another reason a sexual assault case may lack physical evidence is because the rapist did not carry through with the crime. A report of attempted sexual assault should be carefully scrutinized for its veracity. Most rapists will carry out their crime once it has started. On the other hand, a victim who fabricates a rape for attention receives all of the psychological gains by reporting an attempted rape, or abduction and yet does not have to explain why there is no physical evidence to support her claim.

The suspicious sexual assault may include a number of questionable elements. The first assessment concerns the description of the rape itself. The behavior of actual rapists tend to be fairly similar. One type will attack the victim out of the blue, which may involve an abduction. A second type will gain the victim's confidence and coerce the victim into having sex. The abduction type rape is often brutal and may involve unnecessary violence. The coercive rape is much more passive and the rapist may even apologize after the attack. When a rape victim incorporates elements from both types of rapes (coercive and random attack) into her portrayal of the crime, a number of issues arise.

To identify inconsistencies in a report it is often beneficial, during the initial contact, to ask a victim to write out a complete description of everything that happened. Ideally, the victim should be seated alone in a room with several pages of lined paper with the question on top of the first page: "Write down everything that happened which caused you to file this complaint." The investigator should encourage a detailed description by telling the victim that he will return in 15 or 20 minutes. When the investigator returns, the written statement should be reviewed to make certain that the elements of the crime are covered and that sufficient investigative leads are present. If these are absent, the investigator should only seek clarification in those areas. This procedure offers a means for a victim to relate sensitive information at her own pace and to minimize the emotional trauma associated with having to verbalize what happened to her. Of equal significance, the victim's written account can be analyzed for veracity through content analysis and provide a baseline of behaviors and sequences of events which can later be used to identify inconsistencies in the report. Several days after writing out the initial report, the victim can be approached to clarify some aspects of her account. Compared to their original statement, a legitimate victim will relate the same events, probably with greater detail and certainly in the same sequence whereas the fabricating victim may significantly omit or change key events. Changes in sequence of events is particularly important to note.

In a second recounting of the rape, the legitimate victim may recall slightly different words or phrases made by the rapist. However, if the woman initially reported that the man first struck her in the face and then undressed her, but in the second account that he undressed her first and then hit her in the face, this discrepancy in the sequence of events supports the suspicion of a probable falsification.

A second consideration is the description of the rapist. An actual rape victim will preserve a real memory of the image of the rapists (if one exists). It will not change with time or suggestion. In a fabricated claim, there is no factual image of the rapist to recall. Consequently, it may change with time or suggestion. In this regard, it is a useful interviewing technique for the investigator to purposefully incorporate inconsistent information within an interview question. Consider that the victim reported that the rapist had a scar running down his right cheek. During a subsequent interview, the investigator might ask, "Now you said in your written statement that he had a scar on his left cheek, about how long was the scar?" The legitimate victim, relying on factual recall, will readily detect this discrepancy and correct the misinformation in the investigator's question. The fabricating victim is likely to miss the inconsistency and readily provide an estimated length of the scar.

Finally, the victim's lack of cooperation in the investigation may make the claim suspicious. A legitimate victim will be anxious to catch the man who raped her. She may exhibit some reluctance to testify at trial, but will generally be very cooperative during the investigative stage. A victim who has fabricated the rape claim may put off appointments to look at mug shots or may be unreasonably unavailable to identify a possible suspect in a lineup. When working with a sketch artist, she may offer very vague information or inconsistent information. In one case of a false claim of rape we investigated, the description of an un-masked suspect started off as Hispanic and then went to African American but ended up as possibly Caucasian. An experienced sketch artist will develop a pretty good sense of what a normal victim or witness' description sounds like during the session. The investigator should talk to the artist and ask whether or not the victim's recall, detail, consistency and verification statements were normal or unusual.

In conclusion, the first step of any sexual assault investigation is to assess the veracity of the victim's report. In some cases, there will be absolutely no doubt that the victim was raped. In many cases, the nature of the report itself will support a high probability that the victim was sexually assaulted. In rare cases, the victim's report may be judged as suspicious. The most valid means to ascertain a victim's truthfulness is through the polygraph technique. When this is not a legal option, the investigator should arrange for the victim to take a Behavior Analysis Interview. Ultimately, the evidence required to drop an investigation or charge a victim with obstruction of justice will be a confession. To obtain a confession, of course, the alleged victim will have to be interrogated. The decision to confront and interrogate a woman who claims that she was raped should only be made when there is a reasonable suspicion that the report is false.