September 2011, Week 1


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Fri, 2 Sep 2011 22:17:42 -0400
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Sex, Lies and the DSK Case

Patricia J. Williams
August 31, 2011 | This article appeared in the
September 19, 2011 edition of The Nation.

I've been to a lot of dinner parties lately where the
question du jour is whether Nafissatou Diallo should
have been "given her day in court" so she could "fully
air" her charges against Dominique Strauss-Kahn; and,
while we're on the topic, whether Manhattan District
Attorney Cyrus Vance Jr. compromised his political
career with the motion to dismiss. It's slow around
Labor Day, so I understand the hunger to have that case
go on forever; it would have been a mega-spectacle, and
I, too, would have loved seeing the blood vessels in
Nancy Grace's temples balloon and throb.

Carnival possibilities notwithstanding, however, it's
important to remember that criminal cases fall apart all
the time. Through one prism, this was just one of them-
such is life. At the same time, as Katha Pollitt noted
recently in a post on The Nation's website, the onus on
a victim asserting rape is very, very great. It seems
there's always "something" in her past that can and will
be used against her. In addition, the way l'Affaire DSK
played with hot-button political figurations-money,
race, ethnicity, immigration-made its end especially
excruciating. Like a piƱata that has spewed its contents
after much bashing, a ghostly ruin of pluralized images
were left to us: poor hotel workers, haughty Frenchmen,
lying black women, callous prosecutors, Muslim mothers,
high-priced lawyers, insidious unnamed sources, guys who
smile like cats that swallowed the canary and
traumatized rape victims everywhere.

It's important to understand why this case fell apart,
to distinguish some of its particular features from the
more general challenges in prosecuting rape. First, rape
cases are notoriously difficult to prove, because the
crime is so often one-on-one, or "he said/she said." In
the past, the mere lack of other witnesses was
considered legal reason for letting rape go
unprosecuted. This is no longer true-and despite
confusing media assertions to the contrary, Diallo's
case was not dismissed on those grounds.

Second, despite our best aphorisms that "even"
prostitutes and pathological liars can be raped, it
remains true that the credibility of rape victims is too
frequently doubted for specious reasons having to do
with their sexual history. Media accounts suggested that
Diallo's suit was dismissed because of her "questionable
past," but that wasn't what weakened the case most. It
was that she lied to prosecutors again and again and
again. The fact that she falsely claimed on her asylum
application to have been gang-raped in Guinea probably
wasn't enough to doom the case-she might still have
presented herself quite sympathetically as a desperate
refugee fleeing a war zone-but there were other things
undermining her credibility. Diallo repeatedly confused
or misrepresented crucial sequences of events to the
grand jury, to police and to prosecutors. Not only did
the police investigation turn up a jumble of
discrepancies in her story; her own attorney permitted
her, even advised her, to talk and talk and talk to all
manner of tabloid media hounds. That rather unusual-I
would say reckless-decision captured yet more
discrepancies for the record and diminished her
reliability further.

Third, where an accuser's story becomes subject to
documentable weaknesses on this great a scale, it's the
prosecutor's duty to move for dismissal. What seems to
be overlooked in calls to give Diallo "her day in court"
is that our criminal justice system pursues cases in the
interest of public order, not on behalf of an individual
complainant. That's why criminal cases are titled "The
People" of a jurisdiction versus an alleged criminal
actor. (A civil-or more "private interest"-claim, on the
other hand, would allow "Ms. Diallo as an individual" to
bring a case against "Mr. Strauss-Kahn as an
individual," and, given the lighter burden of proof in
civil cases, would offer a better chance of winning such
a suit.) Vance does not represent either "the police,"
as so many seem to think, or Diallo, but rather the
broad justice interests of the entire state; it's the
reason he was required to reveal the flaws in her story
when the investigation uncovered them. If it's
exculpatory, the defendant has a right to know.

The responsibility of prosecutors to dismiss a weakened
case is designed to be a filter of sorts. Not only would
it be a waste of public resources to take questionable
cases to trial; it would fundamentally challenge the
very notions of presumed innocence and reasonable doubt.
The prosecutor cannot-as a matter of absolute
professional ethics-proceed to trial with a claim where
the prime witness repeatedly changes or lies about
relevant, substantive elements of the story. This is not
a matter of discretion: prosecutors are forbidden from
presenting a case to a jury when they do not believe
they can win, as judged by the standard of "beyond a
reasonable doubt."

That said, the perceptions of prosecutors in determining
who is a credible accuser are inflected by the same
biases and assumptions that afflict the culture at
large. When it comes to rape cases, data have shown that
men are more often believed than women, and whites more
than blacks, and fine suits more than sweatpants. Bad
prosecutors make bad decisions about witness credibility
all the time-and therein lie the grounds for our
political advocacy, the reason to keep pressing for more
educated participants at every level of the system, from
police to prosecutors to judges.

We have plenty of reasons to be worried about the social
divides that play out daily in our judicial system. But
if there is bias at work in Vance's handling of his
office, this case isn't the best proof. The wrenching
demographics of misogynistic insult, assault and murder
cannot alone determine the result of a given "case or
controversy" (as our Constitution puts it). Putting them
ahead of actual proof to seek vengeance against a
"smugly smiling" icon of the banking industry is not so
very different from carelessly assuming that a
"scowling" black youth "probably" did it because he was
wearing a hoodie. We cannot-should not-all be Nancy


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