Tuesday, August 23, 2011

The Strauss-Kahn case: Have we handed lone rape accusers too much power to destroy the presumptively innocent?

Suite 2806 of the Sofitel Hotel near Times Square will always be known as the place where Dominique Strauss-Kahn, then one of the world’s most powerful men, had a brief sexual encounter with an immigrant maid named Nafissatou Diallo, which led to a spectacularly high profile sexual assault claim. The charges were officially dismissed today, but the damage to Mr. Strauss-Kahn can't be undone.

Even liars can be raped, but rape seems most unlikely here. Diallo repeatedly lied to police, and she possibly lied under oath to a Grand Jury, about matters important to the case. Her moving target account of what transpired was the evolving narrative of a woman groping for victimhood, and her lies may justify false reporting or more serious charges against her.

It also seems clear, beyond question, that the arrest, the disgraceful perp-walk, and the charges brought against Mr. Strauss-Kahn, which could have landed him in prison for more than 25 years, weren’t just premature, they never should have been brought. His treatment by the American law enforcement apparatus was unconscionable by any measure.

And it is also clear that this was yet another in a cavalcade of high profile rape cases blown out of proportion only to implode after an unjust and imprudent rush to judgment. Turning serious charges of criminality into media spectacles, arresting and charging before any serious investigation on the basis of the accuser’s word, is never just, and it does no favors to actual rape victims who might think twice about coming forward when they keep seeing rape cases fall apart.

According to the New York Times, “prosecutors went from characterizing Mr. Strauss-Kahn’s accuser as a credible woman whose account was ‘unwavering’ to one who was ‘persistently, and at times inexplicably, untruthful in describing matters of both great and small significance.’ Because eventually prosecutors could no longer believe her, they wrote, they could not ask a jury to do so.”

"We have no confidence that the complainant would tell the truth on this issue if she were called as a witness at trial," the DA's papers say.  See here.

A sexual assault motivational speaker named Jackson Katz recently wrote that the public was under "the mistaken impression . . . that it's a 'she said, he said' matter.” We now know it was Katz, not the public, who was mistaken. From the beginning, the entire case came down to the credibility of this maid. According to the Times, there was no physical or medical evidence to support a claim of a forcible or nonconsensual attack. At most, “[p]rosecutors said they had accumulated enough evidence to show that Mr. Strauss-Kahn, who was managing director of the International Monetary Fund at the time of his arrest, ‘engaged in a hurried sexual encounter’ with his accuser, a housekeeper at the Sofitel New York. . . . . Because none of the evidence established force or a lack of consent, the motion said, the case would hinge on the testimony of the woman, Nafissatou Diallo.” (Emphasis added.)

When the case first started to unravel, there was a suggestion in the press that Diallo might have had a financial motive. “Diallo discussed the incident with a friend incarcerated in an Arizona jail, and mentioned a possible financial pay-off in pursuing the case. (Diallo's attorney, Kenneth Thompson, has argued the translation of the conversation, which had been conducted in a dialect of Fulani, was not accurate.)” See here.

But that, as it turned out, wasn’t the most serious problem with the case. According to Reuters: “Perhaps most damning of all, prosecutors said, where three separate version of events Diallo told them about her actions immediately after the encounter with Strauss-Kahn . . . . * In version one, under oath before the grand jury, she said she had run down the hall of the hotel's 28th floor where she was found frightened and cowering by her supervisors. * In version two, she told prosecutors that immediately after the encounter, she went to another room to continue her cleaning duties and only encountered her supervisor by chance at the supply closet. * In the third version, Diallo said she went to the other hotel room only briefly to retrieve supplies. ‘These varying accounts also make it difficult to ascertain what actually occurred in the critical time frame,’ when the incident occurred, they wrote.” See here.

So why the rush to judgment against DSK? “[P]rosecutors described an impassioned and tearful Diallo telling them about a previous gang rape in Guinea -- which turned out to have been a lie. ‘That it was told to prosecutors as an intentional falsehood and done in a completely persuasive manner -- identical to the manner in which she recounted the encounter with the defendant -- is also highly significant,’ they wrote. ‘But most significant is her ability to recount that fiction as fact with complete conviction.’" See here.

Diallo’s acting ability was enough to destroy Strauss-Kahn. Newsweek quoted the spokesman for the New York City Police Department who said, "in his best authoritative voice, 'Experienced detectives found the complainant’s story to be credible . . . .” The New York Daily News opined: “Given the number of experienced investigators who believed Diallo's utterances, including her since-abandoned tale of having been gang-raped in Africa, she is a hell of a storyteller, one for whom getting caught in falsehood is but an occasion to spin anew.”

On her word alone, Mr. Strauss-Kahn was arrested, photographed naked by police, initially denied bail, held in solitary confinement, and subjected to a most humiliating "perp walk" to satisfy amoral media types, much to the horror of our European brethren who thought it all barbaric. The Police Commissioner made sure to boast to the press that Strauss-Kahn was strip-searched multiple times a day.

When the case started to fall apart, Diallo did what all great actors do to boost failing shows, she went on a media blitz. A reporter for the New Post said she “change[d] the subject.” She made it “about race.” Diallo’s lawyer said: "If it wasn't for race, if it wasn't for class, do you think [Diallo] would be treated this way?" Leaders from the black community and feminist groups publicly backed Diallo—scrapping all the lessons from Duke lacrosse about the dangers of mixing a serious criminal investigation and group identity politics.

Diallo’s media blitz implied that law enforcement--specifically, the people who unnecessarily photographed Mr. Strauss-Kahn naked, denied him bail, held him in solitary confinement, subjected him to a most humiliating "perp walk," boasted to the press how he was strip-searched multiple times a day, and, in essence, forced him to step down from one of the globe’s most important jobs--that law enforcement--wasn't taking her claim seriously. It was as dishonest as it was absurd.

Prof. Alan Dershowitz just shook his head. "The story," he wrote, "is almost never what it appears to be on first impression." Too often, he noted, cops in sex units "are . . . agenda driven. Too often they believe they’re on a mission . . . . They’re zealots; I call them Nancy Grace prosecutors. She behaves on her TV talk show as if there’s no such thing as innocence; everybody arrested is guilty." In a line that sums up the entire debacle, Dershowitz added: "They shouldn’t have presumed him guilty from the beginning."

Feminist Naomi Wolf found it all “profoundly worrisome.” She added: "Whatever happened in that hotel room, Strauss-Kahn’s career, and his presumption of innocence, was effectively over — before any legal process had even begun."

Noted attorney Roy Black put the case in larger perspective: “For decades, there has been a unique, growing disparity between the way we treat accused rapists and their accusers. It's grown because of a relentless pressure to manipulate the rules to increase arrests and convictions in rape cases. The protections against false accusations have been whittled away one by one to make it easier to charge and easier to convict, with the unintended consequence of making it easier to make a false accusation.”

But Susan Brownmiller, for one, would have none of it. She engaged in a sort of prejudgment by gender. "I believe her story," Brownmiller declared. Brownmiller’s proof? "Rape victims remember some facts vividly," she asserted, "but often get confused about exact timelines." As it turned out, timelines had nothing to do with the problems in this case. It came down to the simple fact that Diallo’s claim didn’t ring true. Brownmiller didn’t bother to note that rape liars also often posit narratives that are a hodgepodge of clarity, confusion, and vagueness. See, e.g., J. Savino, B. Turvey, Rape Investigation Handbook, at 286-87 (2d ed. 2011).

Ironically, the “perp walk” turned this man who just might have committed sexual assault into a martyr in France. "We're not used to those images. It was very violent for us, the handcuffs, his face when he emerged from prison after not sleeping," said a French journalist. "’He became a sort of martyr, said Laëtitia Lecomte, 26, of Paris, as she sipped a beer with her friend at a trendy Paris café.” See here.  

In the end, there were no winners. DSK has been unjustly destroyed. Diallo will be forever seen as a liar in many quarters. The New York law enforcement apparatus got it right, but only after it unnecessarily destroyed DSK. Actual rape victims saw yet another high profile rape case implode.

Since rape cases are too often handled as irresponsibly as this one was (remember Hofstra?), the question becomes this: have we handed too much power to lone accusers to destroy innocent men and boys? Is bringing charges based on a rape accuser’s acting abilities, or the fact that she’s a sympathetic figure, justice in any sense of the word?

The lesson is the same one that runs throughout so many of the cases we report on this blog: as a people, we seem to be hard-wired with a perverse inclination to rush to judgment when it comes to heinous sex accusations. Too often, that rush to judgment turns out to be wrong. As a society, we permit the reputations of persons falsely accused of sex crimes to be destroyed by even baseless accusations of a lone accuser; we permit the presumptively innocent, who too often turn out to be falsely accused, to be arrested and jailed on even far-fetched claims, with bail set sufficiently high to insure they won't be released before trial; and we excuse false accusers with little or no punishment, inviting others to falsely accuse with impunity and without deterrent.

We always hope that a case like this will be a wake-up call, but history tells us that's not likely.