Friday, August 26, 2011

Women's advocates do disservice to rape victims by telling them that justice was not served in the DSK case

FRS Reveals What's In the Motion to Dismiss: It's Eye-Opening

This is a post intended for rape victims. Although this blog gives voice to victims of wrongful rape charges, we also want rape victims to be able to seek healing and justice. A close a family member of mine was a victim of a brutal sexual assault. We do not harbor rapists at FRS nor do we advocate for them to elude justice.

To all victims of sexual assault we say this: do not -- we repeat -- do not allow the decision by New York County prosecutors to dismiss the charges against Dominique Strauss-Kahn ("DSK") to dissuade you from reporting that you've been raped. 

You are being terribly misled if you listen to the persons or groups who suggest that the DSK case sends a "very bad message to women vulnerable to sexual abuse" that rape victims have to be "perfect" in order to get justice. It is most distressing to read the following: ". . . for many feminists and victims' advocates, the victory for Strauss-Kahn is a defeat for women who have been sexually assaulted or raped, and who may already have been nervous about coming forward." See here.

By failing to tell the whole story, and by publicly insisting that women can't get justice unless they are "perfect," those victims' advocates, themselves, are improperly discouraging rape victims from coming forward.

The accuser in the DSK case, whose name is Niasfatou Diallo, wasn't just not perfect; according to the very prosecutors who arrested and charged DSK (and allowed him to experience a humiliating and high profile "perp walk"), she was "persistently" and "inexplicably" untruthful to prosecutors. But don't believe me -- read the motion to dismiss that was filed by prosecutors. I suspect that very few, if any, of the persons who are alarming rape victims have read it. See here:  We are going to explain it, below. We suspect it will be eye-opening for a lot of people.

In their motion, the prosecutors make clear: "That an individual has lied in the past or committed criminal acts does not necessarily render them unbelievable to us as prosecutors, or keep us from putting them on the witness stand at trial." But the prosecutors explained that Diallo's case was different: ". . . the nature and number of the complainant's falsehoods leave us unable to credit her version of events beyond a reasonable doubt . . . ."  They explained that Diallo's "credibility cannot withstand the most basic evaluation. [She] has provided shifting and inconsistent versions of events surrounding the alleged assault, and as a result, we cannot be sufficiently certain of what happened."

The lesson, as shown below, is that in rape cases, which often hinge heavily or even entirely on credibility, rape victims need to be completely honest with prosecutors. I am aware of many rape cases brought to trial where the accuser was herself accused of making prior false rape claims, but this did not dissuade the prosecutor from bringing the rape case to trial. Having an imperfect victim does not normally preclude charges from being brought to trial. But lying to the prosecutor, whose job it is to try to weave a credible narrative for the trier of fact, will.

According to the motion to dismiss: "In virtually every substantive interview with prosecutors, despite entreaties to simply be truthful, [Diallo] has not been truthful, on matters great and small . . . . Over the course of two interviews, for example, [she] gave a vivid, highly-detailed, and convincing account of having been raped in her native country, which she now admits was entirely false."

Diallo's "longstanding pattern of untruthfulness" includes some false statements under oath about this case to the grand jury, which would have been revealed at any trial.  Diallo admitted that she lied to the grand jury about her activities in the immediate aftermath of the alleged incident. And it wasn't even limited to that. Diallo "displayed a repeated lack of candor about a wide range of additional topics concerning her history, background, present circumstances, and personal relationships." She has been "persistently" and "inexplicably" untruthful to prosecutors, the motion said.

Let's focus on one. Diallo gave prosecutors "irreconcilable accounts" of what happened in the immediate aftermath of the alleged incident.  From May 14 to June 28, Diallo told prosecutors that after the incident, she immediately fled DSK's suite at Room 2806 of the  Sofitel Hotel near Times Square and went to the far end of the 28th floor hallway.  She claims she spit out semen on the carpet of the hallway.

On June 28, however, she admitted that she had lied under oath to the grand jury and that she had been untruthful with prosecutors on material points about this incident.  For the first time, she admitted that immediately after the incident, she went to another room, room 2820, to finish cleaning it. She detailed her activities in cleaning in that other room. Then, she said, she returned to DSK's room and began to clean it as well. Then, she happened to encounter her supervisor when she went to a linen closet to retrieve supplies. 

Prosecutors checked out the electronic swipe records and determined she was only in room 2820 for a very short time -- less than a minute -- and could not have engaged in the cleaning activities she detailed.

On July 27, her story changed again. This time, she said she had cleaned the other room, room 2820, earlier in the day, not after the alleged assault. She said that after the alleged incident, she ran into 2820 only momentarily to retrieve cleaning supplies. And, importantly, she denied that she told the same prosecutors a different version of the story on June 28, as noted above. That latter denial caused the prosecutors to call her credibility into question on a most fundamental level. (The suggestion from the motion is that they lost all faith in her.) Prosecutors said they had no confidence as to whether Diallo would tell the truth on this issue at trial, which is highly problematic. They simply didn't know what to believe.

Diallo also lied to prosecutors about being gang raped in Guinea. Again, much misinformation about this lie have been floating around the press. On May 30, she told prosecutors a powerful, emotional, and convincing account of being gang raped in the presence of her 2-year-old daughter.  But on June 8 and 9, she admitted "that she had entirely fabricated the attack."  Asked why she had lied, she told prosecutors that she had relied on the incident in her application for asylum (in fact, she had not), and besides, she said, her prior statement to prosecutors wasn't under oath. 

Have you read enough yet?

Wait, she's not finished. Then, she admitted that she had learned the gang rape tale by memorizing a fictional rape recounted on a cassette tape because she intended to use it when she sought asylum. But she decided not to use the tale in her written asylum application. 

Prosecutors found it fatal that Diallo had lied with with the same conviction about the alleged gang rape in Guinea that she employed to describe the alleged incident at issue.  On June 9 and 28, she insisted again that she had been raped in other incidents in Guinea, but prosecutors had no way to investigate these alleged incidents.

Beyond that there were other credibility problems. She repeatedly committed fraud in seeking low income housing. Moreover, she had a telephone discussion with her alleged fiance about financially profiting from the DSK incident. Despite insisting she did not want to benefit financially from the case, she later filed a civil action for money damages.

In addition, the motion painstakingly details the fact that there is no physical evidence of forcible compulsion or lack of consent.

The prosecutor, the motion explains, has an obligation not just to the "victim" but to society. He has a duty to seek justice, not just win cases. His or her obligations are bottomed on the "fundamental value determination of our society that it is far worse to convict an innocent [person] than to let a guilty [person] go free."  While charges may be brought on probable cause, felony prosecutors in New York County have a policy of only bringing cases to trial where they are personally convinced of the defendant's guilt beyond a reasonable doubt. Here, they were not so convinced.

My summary can't do justice to the motion. The cumulative effect of a cavalcade of lies, both big and small, under oath and not, and especially the lies told to the prosecutor whose job it is to present a credible narrative, was overwhelming.

To suggest that the charges were dismissed because Diallo is not a "perfect" victim is a gross and puerile distortion of reality and can only dissuade rape victims with legitimate claims from coming forward.  To better serve both rape victims and the presumptively innocent accused of heinous sex crimes, we need to move the discourse to a more mature level.

It is well to note that no one else, aside from women's advocates, are spreading the view that justice was not served here. There is, in fact, a widespread international consensus among objective observers -- observers who do not speak regularly on gender issues and have no axe to grind in the matter -- that the sexual assault charges against Dominique Strauss-Kahn were properly dismissed. That consensus was generated not by any sympathy for Mr. Strauss-Kahn, who is by no means a sympathetic figure, nor by antipathy for his accuser's gender, race, or ethnicity, but because it is painfully self-evident that the charges simply are not sustainable. Many thoughtful observers, including feminist Naomi Wolf and a host of serious commentators in the European community, viewed with alarm American law enforcement's zealousness in bringing the charges.  Those who condemn the dismissal of these charges voice a position that is so extreme and discordant with fundamental values cherished by our jurisprudence, and that strays so far from the mainstream of serious and reasoned thought, that they have lost any rightful claim to participate in the public discourse about the serious issues relating to sexual assault.

The prosecution of sexual assault raises a host of complex issues that require the nuanced balancing of critical and delicate interests: we must, on the one hand, strive to punish malefactors, and on the other, insure that the innocent are not punished with the guilty. The balancing of those two imperatives is difficult enough in the rape milieu without injecting childish and shrill politicization into the discourse.

False rape accusers should not come forward, eveyone with any sense agrees with that.  But by any measure, justice for DSK should not stop rape victims from coming forward. Those who suggest otherwise are hurting rape victims.

Link to the Motion: