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Equal Justice

MCQ - August 23, 2011

The title of this post is a hat tip to bbell over at MM who blogged about this subject .  bbell wrote his post at the time when Dominique Strauss-Kahn (“DSK”) the then powerful head of the International Monetary Fund (“IMF”), and putative front-runner in the race for president of France, was arrested for sexually assaulting the maid in his New York hotel room. 

Today, the charges against DSK were dismissed by the court at the request of the prosecutor who refused to bring the charges to the jury because of evidence that the maid had lied in the past about the facts of her immigration, her background and the facts of her case.  How and why the victim was found to be lying about so many things is not clear, because we don’t have access to all the interview transcripts and probably never will, but on this subject, the prosecutor has said:

“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.”

We’ll have to take the prosecutor’s word for that, because despite this statement, the victim in this case was exceptional (in the prosecutor’s view) in this regard:

“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

In addition to this credibility problem, or more accurately exacerbating that problem, the prosecutors found themselves with a lack of corroborating evidence.  There were no witnesses to the alleged crime (no surprise, given that the attack occurred in a hotel suite, and mostly in the bathroom of that suite) and the medical evidence, while conclusively showing that sexual contact occurred, did not conclusively demonstrate force.

That’s all very bad luck for the victim.  Most rape and sexual assault cases live and die on medical evidence and corroborating testimony.  The he said/she said is often a stand-off and the relative credibility of the witnesses is important to determine who is telling the truth about what happened.  In this case, no one will ever have the chance to weigh the credibility of the victim against the credibility of DSK, because the prosector felt that he could not take the case to the jury and ask them to believe the victim, because the victim’s previous false statements made that impossible.  I can’t say if I agree with that determination, because I don’t know everything that the prosecutor knows but I think it’s worth asking this question:

Would the prosecutor have made the same decision if the roles were reversed?

In other words, if the victim were a wealthy and powerful white woman and the accused were a working-class black man, would the prosecutor still have found the same credibility problems if the victim had made the same statements?

I hope that question was seriously asked and carefully answered.  And I hope the answer was an honest yes.  If not, we have a serious problem.

No matter what the answer to that question might be though, DSK should consider himself the luckiest defendant alive and should keep his mouth shut as he slinks back to France.  Any negative or arrogant statements directed toward the victim, the police, the prosecutor or the American justice system should earn him nothing but contempt.

In other words, simply because the American justice system can’t prove a crime ocurred in this case, doesn’t mean the victim isn’t telling the truth.  After reading about the case, and considering the backgrounds of both the victim and the accused, I think it’s safe to say this is not a man who should be trusted alone in a room with any woman ever.  Unless that woman is armed.


  1. Politicians are routinely set up by their political enemies. It’s a dirty business. Perhaps not as dirty as American jurisprudence, but dirty none the less.

    Comment by Brad — August 23, 2011 @ 7:32 pm

  2. That allegation was made by some early in the process, Brad, but is, to put it politely, garbage (to use the French word).

    There is zero evidence of political conspiracy here. In fact less than none. But this post isn’t about that, so kindly take your nutball theories elsewhere.

    Also, I’m not sure why you would use this case to cast aspersions on American jurisprudence, because in this case, according to most commentators, it functioned as pretty much as advertised.

    Comment by MCQ — August 23, 2011 @ 7:41 pm

  3. The mind that takes offence to a position tends to be a closed one. No offence. Can’t the highest per-capita prison population on the planet be a symptom of deeper problems? Or does the truth hurt too much?

    I get the feeling that Nine Moons is no place to cast pearls, but I’ll check back to make sure.

    To keep on-topic, I prefer to think of DSK as a victim, not a defendant.

    Comment by Brad — August 23, 2011 @ 10:17 pm

  4. No offense (note the correct spelling) taken Brad, just wanted to inform you of the unfounded nature of your speculative conspiracy theory, and that such speculation was irrelevant, and thus unwelcome, to this discussion.

    If your comments were, in fact, pearls, it would be more appropriate to let them be identified as such by others, rather than yourself. We are so rarely accurate judges of the value of our own work.

    To reiterate a saying that I find very useful: “Everyone is entitled to their own opinion, but not their own facts.” The application of that saying to this situation is that if there were any facts at all supporting your preference for thinking of DSK as a victim, then it would be worthwhile to discuss that possibility. As it is, however, there are none.

    Rather the opposite:

    - He faces claims at the IMF that a married Asian administrative worker was pressured into having sex with him.

    - He also faces a formal investigation in Paris that he attempted to rape writer Tristane Banon during an interview in 2002.

    Along with numerous rumors of sexual harassment and affairs, so much so that he is widely referred to as “the great seducer” by the French press.

    Yep. Sounds like a victim alright.

    Comment by MCQ — August 23, 2011 @ 11:14 pm

  5. So DSK is legally innocent… but that leaves him as the same kind of married cheating POS who has “consensual” sex with a housekeeping woman half his age at a hotel he’s staying at. He’s either stupid, has no self-control, or both. This may be a legal victory, but not in any other way.

    Comment by Ben S — August 24, 2011 @ 1:42 am

  6. You nailed it for the most part, Ben, but in fact DSK is not legally innocent. The charges were dismissed but there was no legal finding of innocence, or guilt for that matter. There are simply no criminal charges anymore. That does not mean he is innocent.

    There is still a civil suit out there that could result in a finding that he is legally liable to the maid for damages, and those damages could be in the millions of dollars.

    Comment by MCQ — August 24, 2011 @ 2:43 am

  7. There is zero evidence of political conspiracy here

    Given the people he has raped in the past, some of whom are involved in politics and in groups that have history of set-ups, I would not doubt it possible (though not likely) that a set-up by prior victims occurred.

    If she wins the civil suit, the prosecutor can always reinstate the charges.

    But Ben S nails it, all in all.

    Comment by Stephen M (Ethesis) — August 24, 2011 @ 5:08 am

  8. groups that have a history of set-ups??? Please explain what that could possibly mean Stephen.

    And why would his previous victims need to set him up? If they are victims, why can’t they just accuse him of doing what he did to them?

    Comment by MCQ — August 24, 2011 @ 5:31 am

  9. What have we learned?

    1. If you are raped, make sure it is in front of witnesses.
    2. Make sure that you resist sufficiently that you are severely beaten, and preferably hospitalized.
    3. Don’t be poor.
    4. Don’t be a minority.
    5. Especially, don’t be an immigrant
    6. Don’t be raped by someone above your social strata

    I am no lawyer, so this is only my opinion. In accusations of rape, the defense “it was consensual” should not be allowed. Ever. Period.

    Comment by John Roberts — August 24, 2011 @ 7:22 am

  10. John, since I am a lawyer, can I just ask why you say that? The reason I ask is that consent is pretty much the ONLY defense to rape if sexual contact is proved.

    Are you saying that no defense to a rape allegation should be allowed? Why is that? the result would be that any time a victim ever accused anyone of rape a conviction would be certain to follow. Do you trust all victims that much?

    I think it’s pretty rare, but there are certainly cases where it was eventually proved that the victim invented a rape allegation after consensual sex for some reason. Why do we want to make it impossible to utilize that defense?

    Comment by MCQ — August 24, 2011 @ 9:22 am

  11. MCQ- yes, that’s right. I believe that if there is proven sexual contact, and a woman alleges it was rape, it should be considered rape. I believe, in fact, that that is the definition of rape.

    I am not concerned about providing a defense for the indefensible.

    Rape and violence, and the threat of rape and violence, are the primary tools of men throughout history to subjugate women. And they are used broadly and consistently all over the world. I want those tools out of the toolbox.

    The admittedly “pretty rare” invented accusation of rape after consensual sex may end up imprisoning innocent males. It is not, in my opinion, too high a price to pay for creating a major disincentive against a practice which brutalizes society.

    You may disagree.

    Might make men more particular about whom they choose as sexual companions, though.

    There are a number of reasons I feel this way, mostly having to do with self-interest.

    First, I, myself, have never needed, and will never need in the future, the “consent” defense.

    Second, I have known too many women who were sexually abused, and many sexually abused as their first sexual experience. And many who could not even recognize it as rape, because there is such a stigma in our society.

    Third, as an older father of younger children, I am sick to the teeth of taking my child to a park or shopping center and having concerned strangers– including policewomen– coming up to my daughter and asking, “Are you OK, honey?”, or words to that effect. The fear, even here in the “enlightened” West, is that great.

    Comment by John Roberts — August 24, 2011 @ 4:31 pm

  12. yes, the system worked as it should. rather than exacerbating an injustice (the possibility that DSK was innocent), a possible guilty man was let go. This is the way it should be. A system of justice works better when one prioritizes that guilty men go free rather than innocent men are jailed. I think of Cameron Todd Willingham of Texas, who, upon further review of the incident that killed his children, was innocent, was executed by the state of Texas with political cover from Governor Perry. That’s not justice.

    Comment by Dan — August 24, 2011 @ 4:48 pm

  13. John, the statements you are making are naive and dangerous.

    I believe, in fact, that that is the definition of rape.

    No, actually the definition of rape is always something like this:

    A person commits rape when the actor has sexual intercourse with another person without the victim’s consent.

    emphasis added.

    As you can see, a lack of consent is always part of the definition. Thus the prosecutor must prove a lack of consent as part of the case against the accused, and the accused always has the defense of consent.

    That can be overcome by evidence, such as where there is medical evidence of force, or evidence of behavior showing a lack of consent (such as screaming or struggling), evidence of intoxication, or if the victim is of an age where consent is not legally possible.

    First, I, myself, have never needed, and will never need in the future, the “consent” defense.

    That’s a very large assumption. I hope you are right, but there is no way to guarantee that, short of never having sex with anyone ever.

    Taking lack of consent out of the definition of rape would not accomplish what you want. It would undoubtedly make rape much easier to prosecute, but at the cost of imprisoning a lot of innocent people. You may be ok with that because you are currently not one of those people, but as soon as you make it ok to lock up the innocent, look out, because you could be next.

    Comment by MCQ — August 24, 2011 @ 5:55 pm

  14. A system of justice works better when one prioritizes that guilty men go free rather than innocent men are jailed.

    Right on Dan.

    That’s exactly the principle our system was founded on: It’s better that some of the guilty go free than that one innocent person is found guilty.

    If we start reversing that formula, we’ve lost the most basic idea of American justice.

    Comment by MCQ — August 24, 2011 @ 6:01 pm

  15. Sorry, I’m an economist, not a lawyer.
    There will always be innocents convicted, and guilty set free.
    The question is one of balance.
    Currently, with the crime of rape, the guilty go free an awful lot of the time.

    If a rape is reported, there is only a 50% chance of arrest.
    If an arrest is made, there is an 80% chance of prosecution.
    If there is a felony conviction, only 70% of those convicted spend any time in jail.
    So of reported rapes, only about one-quarter of rapists any time in jail.
    Is it any wonder only 40% of rapes are reported?

    I am not saying that lack of consent need not be proved. I am saying that a woman’s testimony that “I did not consent” ought to be sufficient proof in and of itself.

    I can hear you argue that this constitutes a violation of the concept of “innocent until proven guilty”; but why is it assumed that, absent other evidence, the woman is committing perjury?

    There are already sufficient societal and legal disincentives to reporting rape. We do not need more.

    1. In order to establish coitus, a woman must, within only a few hours, submit to a comprehensive gynecological examination.
    2. When the “consent” defense is brought up, a woman’s entire sexual history is open for examination, while the rapist’s history is off-limits. Furthermore, any perceived moral transgression of any kind is also open for examination.
    3. In addition to being humiliated in court, social mores indicate that being the victim of rape is something to be ashamed of in and of itself. Consider that Bristol Palin would rather admit that she engaged in consensual sex- while unconscious!- rather than admit to herself that her Levi Johnston had raped her.

    My opinions are not naïve, and certainly not dangerous—there is no way in the world that they would become the opinion of even a substantial minority. Rapists will continue to attack and oppress women for personal and national gains all over the world until Doomsday.

    Comment by John Roberts — August 24, 2011 @ 7:33 pm

  16. why is it assumed that, absent other evidence, the woman is committing perjury?

    Ii’s not. But you are not taking into account the testimony of the accused. If he claims there was consent, then you have to look to other evidence, and the relative credibility of the two parties, otherwise you are assuming that the accused is committing perjury.

    In other words, I could have asked the same question of you: Why are you assuming that, absent other evidence, the accused is committing perjury?


    When the “consent” defense is brought up, a woman’s entire sexual history is open for examination, while the rapist’s history is off-limits. Furthermore, any perceived moral transgression of any kind is also open for examination.

    Absolutely false. In fact, it’s practically the reverse. Nearly every state has a rape shield law which states that a victim’s sexual history is inadmissible for the purposes of establishing whether or not she consented.

    By contrast, a Defendant’s history of sexual assault is admissible in most cases:

    FRE Rule 413:

    In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

    You may not think your opinions naive, but people rarely do. What is obvious, however, is that they are not in accord with the facts.

    Comment by MCQ — August 24, 2011 @ 8:26 pm

  17. Wrong about the naievete again.
    I am familiar with rape shield laws, most of which are only about 20-30 years old. Virtually all have exemptions making the laws effectively meaningless.
    1. The federal rape shield law allows the admission of sexual history as evidence if a judge determines that failing to do so would violate the constitutional rights of the accused. Many states follow suit.
    2. Most, I believe, allow admission of sexual history, or alleged sexual history, between the complainant and the accused.
    3. Most, I believe, allow admission of sexual history if the complainant is alleged to be promiscuous, or a prostitute. I believe the language is something like “a pattern of prior sexual promiscuity”, or words to that effect.
    4. Other laws allow sexual history to be admitted in evidence if it is to be used prove consent by the victim lack of credibility. For what other reasons (except to humiliate the victim) would sexual history be admitted as evidence.

    Numbers again: based on confidential surveys, it is projected that on average 300,000 women and 30,000 men are raped each year. About 120,000 rapes are reported each year. About 50,000 men and a handful of women go to prison for rape each year. Do you really think 70,000 women are lying to the police?

    Comment by John Roberts — August 25, 2011 @ 7:07 am

  18. On the other hand, I will confess to the following ignorance.

    I had understood that a fundamental concept of our legal system was that prior convictions or accusations of wrongdoing were inadmissible as evidence of current criminal charges. I stand humbled and corrected.

    (And somewhat concerned.)

    Comment by john roberts — August 25, 2011 @ 8:31 am

  19. John, I don’t want to argue further about this, because it’s not really the topic I intended to discuss in this thread, but your statements concerning rape shield laws are overblown at the very least. These laws do protect victims from questioning about their sexual past in most cases. There are exceptions, of course, but those exceptions are quite limited, and certainly do not render the law meaningless.

    Here is the federal law:

    Rule 412 Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition

    (a) Evidence Generally Inadmissible.–The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
    (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
    (2) Evidence offered to prove any alleged victim’s sexual predisposition.

    (b) Exceptions.
    (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
    (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
    (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
    (C) evidence the exclusion of which would violate the constitutional rights of the defendant.

    (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.

    (c) Procedure To Determine Admissibility.
    (1) A party intending to offer evidence under subdivision (b) must–
    (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
    (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.
    (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

    As you can see, there are only three exceptions that apply to criminal cases:

    1.Prior sex with others to prove that the accused is not the source of blood or semen found on the victim;

    2.Prior sex with the accused to prove consent; and

    3.Prior sex that, if excluded would violate the constitutional rights of the accused.

    These exceptions are similar to the first two you cited in your comment, but not the third. There are some jurisdictions which allow evidence of prostitution to be admitted, but it seems to me those are in the minority, and would be rare cases anyway. I assume we are not talking here about cases in which the victim is a prostitute.

    The exceptions which actually exist in the law are important. If excluding evidence of prior sex acts would violate the constitutional rights of the accused, of course such evidence should not be excluded. But that’s a very high standard.

    Similarly, if the prior sex acts are with another person and are such as to show that the physical evidence found on the victim is from them and not the accused, of course it should be admitted, because that could mean we have the wrong person on trial! I assume you are interested in getting the actual rapist in jail, rather than some other person.

    Lastly, prior sex acts with the accused should be admitted because if there is a sexual history between the victim and the accused, that evidence sheds light on whether there was consent or not. In other words, if the victim and the accused were involved in a sexual relationship, that’s something the jury needs to know before they can determine whether the encounter in question was rape.

    I don’t see how you can argue that any of these exceptions makes the law meaningless.

    Comment by MCQ — August 25, 2011 @ 6:40 pm

  20. Lots os earthquakes and tempests that are heaving the sea beyond its bounds…has anyone noticed the spooky events lately? I’m reminded of both Holland’s and Eyring’s recent talk that remind us after the testimony of believers come the testimonies of earthquakes and tempests….

    Comment by sysdd — August 26, 2011 @ 12:13 pm

  21. John, the issue is which is worse – some guilty getting away with crimes or the state locking up many innocents. Typically in American we’d rather more guilty go free than lock up more innocents. And make no mistake there are innocents.

    The idea that people should just be scared of sex isn’t the only thing since you can be charged with rape without there being physical evidence of such. Without some burden of proof on the state to prove beyond a reasonable doubt their case then anyone can bring whatever charge they want. And yes, that does happen quite regularly.

    Comment by Clark — August 26, 2011 @ 5:36 pm

  22. MCQ,

    I think we both agree on this case. I wonder what role the idea of possibly losing a high profile case played in all of this.

    One thing for sure is that if you lack credibility and you make rape accusations you will have a hard time proving it in court.

    I still believe that DSK is sex offender. He just is on the loose for now.

    Comment by bbell — August 29, 2011 @ 2:07 pm

  23. Right on, bbell.

    The thing that makes rape allegations so difficult is that there are often no witnesses and, as in this case, the physical evidence can be inconclusive. If that is the case, then credibility is your only weapon. I think juries are willing and able to believe the victim, as long as the victim isn’t a proven liar before she even walks into court.

    Comment by MCQ — August 29, 2011 @ 4:01 pm

  24. I was all over hating this guy, until I heard about her previous untruths. I was still in a mood to give her the benefit of the doubt till I watched her interview (sorry, can’t remember which news show) and she seemed to be lying to me. I didn’t buy what she said. I think he’s a terrible person, and who knows what really happened, but I’m not convinced what she said happened, happened.

    And I’m sort of disgusted at the lack of courage of all the other women who suddenly now stand up. Do you think there’s some kind of statistic for this kind of thing? Like that one where for every person who writes a letter to the editor, there are 1000 others who agree? Like, for every woman who claims assault, there are ten silent others?

    Comment by annegb — September 11, 2011 @ 5:44 pm

  25. I think that’s pretty much what the statistics show, that many rapes are unreported.

    In the case of a high profile guy like DSK, it seems like there are many women who have been assaulted by him but have never had the courage to speak up. Now that one person has accused him, the others are finding themselves willing to come forward. I don’t think that’s a bad thing, but I hope they have more credibility than the hotel housekeeper.

    Comment by MCQ — September 12, 2011 @ 12:58 am

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