All’s fair in sex and law?

I’m going to make a wild assumption here, and guess that most of you won’t have read the ‘Recommendation for Dismissal’ filed in the case of the People of the State of New York against Dominique Strauss Kahn… And to be honest, it feels like many journalists haven’t either.

Which is a shame though, as it makes for a very interesting and instructive reading. It is hard enough to get any sense in stories of rape accusations, and even more so when there are politics and power involved. Which is why the motion to dismiss is impressive in its clarity and pedagogy to explain why the charges against Mr Strauss Kahn were dropped, point by point.

The proceedings

The initial important thing to remember is that nothing has been decided. The dismissal of the case does not indicate guilt or innocence, it merely indicates that there is not enough reliable evidence to put the case to a jury. The case can always be opened again one day if new evidence comes to light, or indeed if the complainant decides to bring a complaint in France.

However, in the meantime, the charges are dropped, and now that the court of appeal of New York has rejected the request for a ‘special prosecutor’ to be appointed, DSK will soon be free to go as he pleases, which will probably be back to France.

But what of the evidence you might say? Hasn’t Ms Diallo been vilified because she happened to have lied years ago on her asylum claim and she kept dubious company? Isn’t the physical evidence overwhelming, including vaginal bruising, semen and DNA samples around the suite and even blood?

Well I hear you, because I thought all these things too. The treatment reserved to Ms Diallo by the media showed not only what society’s views were on the ‘proper’ rape victim, but also how we consider women in general: either they are virginal, dutiful mothers or they are lying whores (I paraphrase, but only slightly)… What’s more, the uncovering of DSK’s sexual mores have made him, if not a rapist, at least a pretty unsympathetic character.

But these are just speculations and perceptions, and, thankfully, the case was decided on more rational legal grounds. These grounds can be found in the ‘Recommendation for Dismissal’, as filed by the office of the District Attorney, representing the ‘People of New York’. The prosecutor, Cyrus Vance, does not represent the complainant, Ms Diallo, or the defendant, Mr Strauss-Kahn, but the ‘people’ of his state.

The document initially outlines the alleged facts of the case, restates the prosecution standards as imposed by the state of New York, and gives a detailed history of the investigation, which is well worth a read. It then states the reasons for the recommendation for dismissal of the case.

The reasons are as follows:

  1. that the complainant’s testimony cannot be relied on.
  2. that the physical and other evidence did not establish forcible compulsion.

The complainant’s reliability

The document states that 

In virtually every substantive interview with prosecutors, despite entreaties to simply be truthful, she has not been truthful, on matters great and small, many pertaining to her background and some relating to the circumstances of the incident itself.

The matters on which she has not been truthful (and I take this to be a neutral descriptive term, rather than a negative judgement on her character) included her account of the incident, of which she gave three different versions (all outlined in the document). She also lied under oath in front of the grand jury and recounted a rape which she claimed happened in Guinea before she left and which she now admits was a false accusation.

Granted, none of these facts are conclusive in themselves. Many rape victims give inaccurate and changing accounts of what happened to them in the aftermath of their attack, either by fear of being judged, because of a particular trauma, or just because they blame themselves. Equally, it would seem unfair to hold against her the fact that to escape a war-torn country, she once made up a story about a rape that never happened…

More importantly for the trial though, she explained how she had had help to make her false accusation of rape more convincing, and in particular she had listened to a tape of a rape victim in order to be able to tell it convincingly. This, coupled with the fact that she has changed her account of events numerous times and lied under oath in front of a grand jury, means that a jury will almost inevitably be unable to convict on the strength of her word.

As the motion puts it

Knowing that her compelling manner cannot serve as a reliable measure of truthfulness, coupled with the number of falsehoods uncovered in our interviews with her, compel our conclusion that we are no longer convinced of the D’s guilt beyond a reasonable doubt and cannot ask a jury to convict based on the complainant’s testimony.

Though it can seem hard to do, the words ‘falsehood’ and ‘truthfulness’ should be understood in a neutral sense. Rather than making a value judgement about a naughty girl who told fibs, it states a fact, that a complainant in a criminal case needs to be believed by the jury, because that is exactly what the jury will be asked to do.

The credibility of the complainant is particularly important here because it’s a rape case, which rests, as many rape cases do, on the ‘he says / she says’ balance. Unless there is conclusive physical evidence that the intercourse was not consented to, it will be dependent solely on whether the jury believes, beyond reasonable doubt, that the account made by the complainant is true.

Beyond reasonable doubt is often described as being 99% sure. Considering the above facts regarding Ms Diallo, and even without prejudging on her character, it isn’t hard to see that this 99% would be incredibly hard to reach.

Other Evidence?

Which leaves one more consideration: the physical and material evidence which could prove Ms Diallo’s claims without needing to rely on her word, thereby justifying for the case to go ahead.

The evidence available is:

  • Crime scene evidence: semen, saliva and DNA matching both the complainant and Mr Strauss Kahn were found throughout the suite. However, the presence of semen and saliva does not show there was force, it just shows there was sex, which DSK does not deny.
  • Medical and Hospital Evidence
    • The physical examination of Ms Diallo took place twice, first in a specialised centre a few hours after the acts and later with a specialist gynecologist. Both doctors found that the only visible trace of any possible assault was a ‘redness’ which, although it could be caused by grabbing, “could also be attributed to a host of other causes” (Dr n°1) and “was not likely caused by such an act.” (Dr n°2).
    • There is a shoulder injury that Ms Diallo’s lawyers now claim was inflicted by the attack. However, her shoulder was checked on the day of the first examination and the prosecutor’s office have not been given access to her medical records so far.
    • There were also some rips in her tights (she was wearing two pairs), although, as the document helpfully sets out, tights are easily ripped and it’s impossible to be certain what caused small holes around the crotch…
  • Finally, even the good old-fashioned method of drawing up a time-line of the actors’ coming and goings cannot be relied on here. Electronic records show that Ms Diallo entered the suite at 12:06, and cannot be traced then until 12:26. Mr Strauss Kahn placed a call to his daughter at 12:13, but there is not other evidence capable of proving what happened between 12:06 and 12:26.
And so things are both simpler and more complicated than it seemed. Maybe Ms Diallo submitted unwillingly to a sexual encounter with someone she knew to be important and tried to ‘beef’ up the facts, maybe it was fully consensual and she wanted to get money from him. Whatever happened in fact, the criminal case is not so much about the truth but about the facts that can be proved beyond reasonable doubt. And the case as it was did not stand a chance in court.
But sensationalist media coverage and ill-advised quips from French political allies have muddied the waters over the last few months and vilified a woman who might well be the victim of an unscrupulous man.  For once, it is indeed a case of some of the messengers deserving to be shot…
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