Dominique's Dominos: Strauss-Kahn and Sexual Assault

July 1, 2011, 7:00 p.m. (with additions July 2, 3, 4, 5 and 6, 2011, including resolution of alleged UI football players' sexual assault, 2007)

[And as evidence that (a) the problems on college campuses continue, and (b) have been exacerbated by the predicted Strauss-Kahn outcome, here's an exchange on July 6, 2011, during Tom Ashbrook's "On Point" program:

Tom Ashbrook (TA): Andrew in [city]. Thanks for calling. You're on the air.
Andrew (A): Hi, Tom
TA: Hi.
A: Thanks for taking my call.
TA: Yes, sir.
A: The topic is relevant to my family at this time, and I have an inquiry for Professor Brenner, if she's able to assist.
TA: OK.
A: My daughter, a few weeks ago, was assaulted sexually by a prominent basketball player at one of the two state universities here, . . .
TA: I'm sorry.
A: . . . who had been removed from another state university and was able to transfer in. But my concern is, the university has closed its investigation based on a he-said-she-said type of scenario, which is very frustrating for our family. It obviously raises some concerns about the integrity of the university process. Being both involved with a state university and highly educated on matters of this type, I was wondering if the professor [guest, Professor Hannah Brenner, Michigan State University College of Law] has a suggestion on how we may proceed. My daughter is disinclined to go to law enforcement. Obviously, she does not want to become the maid in the New York City story.
TA: Right. . . .

Tom Ashbrook, "What Does the Dominique Strauss-Kahn Case Mean?" "On Point," WBUR-FM 90.9/NPR, July 6, 2011; Audio, 30:28-31:35.]

Dominique Strauss-Kahn's "mess on both sides"
The media that were so quick to, seemingly, accept the guilt-before-trial of Dominique Strauss-Kahn (then IMF Managing Director, alleged to have raped a New York Sofitel Hotel maid in his $3000-a-day room), now seem equally ferocious in their attack on the credibility of his accuser. And just as they said little about the accuser when judging him, they now make little to no reference to his own past record of sexual assaults, and therefore the credibility of his denials, while disparaging her accusations. [Photo credit: Andrew Harrer/Bloomberg News.]

[The Times' assault on her credibility continued in the July 2 edition, Jim Dwyer and Michael Wilson, "Strauss-Kahn Accuser’s Call Alarmed Prosecutors," New York Times, July 2, 2011, p. A1. By Sunday, the story was still headlining page one, above the fold, in the hard copy edition (although at the bottom of the heap online), but its focus had shifted once again. This time the criticism was not of Strauss-Kahn or his accuser, but of District Attorney Cy Vance, Jr.: "[T]he second-guessing of Mr. Vance’s leadership has intensified in the wake of a string of courtroom losses that culminated in the startling events last week, when prosecutors revealed their concerns about the honesty of the hotel housekeeper . . .. Even a member of the [DA's] finance committee . . . questioned how the case had been handled. . . .Some of the most pointed complaints about Mr. Vance are emanating from the district attorney’s office itself," Alan Feuer, John Eligon and William K. Rashbaum, "Strauss-Kahn Case Adds to Doubts on Prosecutor," New York Times (online), July 3, 2011 (nat'l ed.; headlined, "Crumbled Case Adds to Doubts On Prosecutor; Issues Were Seen Even Before Strauss-Kahn," p. A1).

For a contrasting view, see Joe Nocera, "The D.A. Did the Right Thing," New York Times, July 5, 2011, p. A21 ("For the life of me . . . I can’t see what Vance did wrong. . . . The woman alleged rape, . . . backed up by physical (and other) evidence. She had no criminal record. Her employer vouched for her. The quick decision to indict made a lot of sense, both for legal and practical reasons. Then, as the victim’s credibility crumbled, Vance . . . acknowledged the problems.").]

As a result, as the Times quoted an unnamed official, "It is a mess, a mess on both sides." Jim Dwyer, William K. Rashbaum and John Eligon, "Strauss-Kahn Prosecution Said to be Near Collapse," New York Times, July 1, 2011, p. A1 (New York edition).

[By July 4 there was yet one more rape allegation -- this one in France. Steven Erlanger, "Strauss-Kahn to Face New Sex Complaint in France," New York Times, July 4, 2011 ("Dominique Strauss-Kahn will face another complaint alleging attempted rape, this one in France, the lawyer for a French novelist announced Monday. The novelist, Tristane Banon, 32, claims that Mr. Strauss-Kahn tried to rape her [and she] offered a graphic account of her alleged encounter with Mr. Strauss-Kahn in 2003, saying he grabbed her in a nearly empty apartment as she was interviewing him and dragged her to the floor, pulling off some of her clothes and forcing his hand into her underwear. She said she escaped by kicking him desperately." Her lawyer says her testimony is “solid and well prepared.”) Banon photo credit: Charles Platiau/Reuters.]

By July 5 the Times possessed, and reported, the contents of the hospital counselor's report of the accuser's statement. John Eligon, “In Hospital Report, Housekeeper’s Graphic Account of Attack,” July 5, 2011, p. A16 (“[T]his is the most direct account of the housekeeper’s version of events to be offered so far. It comes from a report prepared by a counselor at St. Luke’s-Roosevelt Hospital Center, where the housekeeper was treated just hours after she said she was attacked, and where she related for one of the first times what happened in the hotel suite. . . . [The] account is suggestive of a serious sexual assault . . ..”)

It makes one at least want to learn more about, if not encourage the U.S. emulation of, the British courts' limitations on the media's coverage of criminal matters. See, e.g., the British 1981 Contempt of Court Act.

In addition to the adverse impact on a "fair and impartial" trial, premature media coverage has an extraordinarily intrusive impact on parties' right to privacy -- the accused as well as the accuser. Clearly the public has an interest in knowing significant changes in the locations and statistics regarding various crimes, or whether a serial killer or rapist is at large. And it has an interest in knowing the outcome, and ultimate jury verdict, in criminal cases -- after the trial is over. But I think the news media has a much tougher case to prove when it comes to their assertion of a public's need to know revelations of the intimate details of an alleged sexual assault before a jury verdict, when the sources of those details are nothing more than the allegations of very interested parties and their lawyers.

And the prosecutors in this case seem little better than the media -- as they are the cause and source of much of what the media is passing along to the public.

At Strauss-Kahn's arraignment, May 16, Assistant District Attorney Artie McConnell, said,

The victim provided very powerful details consistent with violent sexual assault committed by the defendant, which establishes all the necessary elements of the crime he is charged with. She made outcries to multiple witnesses immediately after the incident, both to hotel staff and law enforcement. She was then taken to the hospital and was given a full sexual assault forensic examination. The observations and findings during that exam corroborate her accounts.

His statement at the May 19 bail hearing was consistent:

The complainant in this case has offered a compelling and unwavering story about what occurred in the defendant’s room. She made immediate outcries to multiple witnesses, both to hotel staff and to police. The victim was given a complete and expert forensic examination and the findings from that examination are consistent with her account. The Crime Scene Unit processed the hotel room and the scene, and while those scientific tests have not been completed, the preliminary indications are that forensic evidence that supports the victim’s version of events may be found.

Yesterday [June 30], McConnell and another assistant district attorney provided Strauss-Kahn's defense lawyers a letter setting forth a number of past instances in which the accuser had not been truthful, such as tax returns and her application for asylum. Other law officers revealed she once had a phone conversation with someone in prison for dealing marijuana.

However, with one easily explained exception, none of the incidents contained in the letter has any relevance whatsoever to her version of what occurred during her encounter with Strauss-Kahn on May 14! (The exception has to do with what she did immediately after the attack -- wait for him to descend in the elevator, or go clean another room. Neither is inconsistent with what, if the attack occurred, could have been her state of shock at that time.)

The Times reported that at today's [July 1] hearing,

Prosecutors said they still believed Mr. Strauss-Kahn had forced the woman into sex, but that inconsistencies in her past and account of the moments following the incident could make it hard for jurors to believe her. . . .

Mr. Kenneth Thompson, the woman’s lawyer, . . . insisted that she was still the victim of an attack, saying that her version of events has never wavered. He said some evidence, like bruising she had sustained, was consistent with a nonconsensual encounter. And he said her decision to clean a room was consistent with someone who was confused and upset in the wake of an attack.

John Eligon, "Strauss-Kahn Is Released as Case Teeters," New York Times (online), July 1, 2011, 3:35 p.m. EDT.

My reading of the accounts is that everyone, including Strauss-Kahn and his attorneys, acknowledge that a sexual attack or encounter of some kind occurred. Their version of events is that the accuser's bruises and vaginal tears were "consensual."

I'm willing to accept the assistant district attorneys' assertion that New York's Criminal Procedure Law, 240.20, required at least some of the disclosures in their letter be made to defense counsel. But I also accept Assistant District Attorney McConnell's judgment on May 16th that, "The victim provided very powerful details consistent with violent sexual assault committed by the defendant, which establishes all the necessary elements of the crime he is charged with."

Apparently there are years' old instances in which she did not tell the truth about events in no way related to those on May 14th. But it seems to me the issue of whether that will, in the words of the assistant district attorney, "make it hard for jurors to believe her," is a matter which our legal system has delegated to those very jurors, not assistant district attorneys.

The only issue, the only fact questions, in this case are what happened between the housekeeper and Strauss-Kahn on May 14.

It is irrelevant that numerous women have come forward, or are alleged, to acknowledge affairs, unwanted sexual advances, and sexual violence with Strauss-Kahn -- including a hotel maid in Mexico. Fay Schlesinger, "He was like a gorilla. . . actress's sex claim against former IMF chief as new affair is revealed with Italian widow," London Daily Mail, May 19, 2011. It is equally irrelevant that his accuser may have mentioned in a phone conversation with her boyfriend (in prison) a couple days later something about Strauss-Kahn's wealth. (What may perhaps be relevant are that (a) in the course of that conversation, one she likely presumed was private, her account of the alleged assault squares perfectly with what she had earlier told New York police, and (b) questions as to how that conversation happened to have been recorded, by whom, where a translator of the accuser's language (a “unique dialect of Fulani”) was found, and whether this operation was a violation of law.)

(Another process and privacy issue is raised by "Paul" in a comment on the Times' story regarding the hospital counselor's report of the maid's statement, linked above, "Who leaked this report? I hope my medical records remain more confidential than this." Paul, Plattsburgh, July 5, 2011, 8:22 a.m., http://community.nytimes.com/comments/www.nytimes.com/2011/07/05/nyregion/housekeeper-detailed-strauss-kahn-attack-in-hospital-notes.html?permid=11#comment11.)

Strauss-Kahn could be a serial rapist and his accuser a serial killer. The question still remains: what happened between them on May 14? If her past misrepresentations make her trial testimony about those events less trustworthy, then the prosecution will have to provide additional evidence -- the forensic evidence from the hotel room, the medical experts and their records , her contemporaneous statements to hotel personnel and police, and especially her wiretapped "confidential" description to the prison inmate.

Undoubtedly, other facts will unfold with time. But for now, I tend to share many of the reactions of another lawyer who commented on the New York Times's site, a "Scott F." of Atlantic Beach, Florida:

I do not know if he [Strauss-Kahn] raped the housekeeper. I do not know what went on in DSK's hotel suite at the Sofitel on that morning/afternoon. But I am more than a little suspicious at how quickly the prosecution's case is supposedly unraveling. The anonymous law enforcement officials quoted in the NYT seem to be cheerleaders for DSK.

I am not familiar with any other criminal case where the prosecution did such a gigantic flip-flop about the accused's guilt or innocence under anything close to similar circumstances.

What in the world is going on with this case? . . .

It makes me more than a little uncomfortable . . . that the prosecution is selling its witness/victim down the river so blatantly. I have not yet read about any "lies" that strongly suggest that she was lying about the attack itself.

If the prosecutor is going to wait for a blemish-free victim before it prosecutes another case, he may be sitting idle for quite some time. Seems to me that some strings are being pulled by some very powerful fingers.

http://community.nytimes.com/comments/www.nytimes.com/2011/07/02/nyregion/new-yorkers-and-french-await-latest-dominique-strauss-kahn-legal-turn.html?permid=29#comment29

Meanwhile, I am left with the memory of what a local football player declared on his Facebook page to be his "favorite quote":
"She can't say no if her mouth is taped shut."
(Quoted in "Abu Ghraib, Rumsfeld, and Athletes' Facebook Photos; What Do Abu Ghraib and Athletes' Facebooks Have in Common?" August 23, 2007, from Brian Morelli, "Alcohol Abundant on Players' Sites; Review Shows Questionable Material," Iowa City Press-Citizen, August 23, 2007, no longer available online.)

Of course, she is equally inhibited from saying no if she has passed out.

An Iowa football player "was accused of sexually assaulting a female UI swimmer while she was passed out in a dorm room on Oct. 14, 2007. [His] teammate . . . was charged with second- and third-degree sex abuse in the case, based on allegations the men worked together to assault the woman." Erin Jordan, "Former UI Football Player to Serve 7 Days for Assault," The Gazette, June 25, 2011, p. A3. What transpired during the year following October 2007 is collected in "University of Iowa Sexual Assault Controversy -- 2007-08," September 25, 2008.

Now, after numerous postponements, the cases have finally been concluded nearly four years later.

One player, charged with the felony of third-degree sex abuse (up to 10 years in prison and sex offender registry listing) ended up with seven days in the local jail for simple assault. The other took a plea deal, pleaded guilty to assault with intent to commit serious injury, and received no prison time; just a suspended sentence, probation, a fine and victim restitution.

This was Iowa's version of a high-profile sexual assault case. As Jordan reports, "The UI’s handling of the sex abuse case was criticized in an independent investigation ordered by the Iowa Board of Regents. The case resulted in the firing of two senior-level administrators and redrafting of UI policies for dealing with sexual assault allegations."

Of course, IMF directors and football players aren't the only ones who often end up "getting away with it." But the high profile cases are a teachable moment, or should be, for all of us.

Somehow, some way, someday, we are going to have to figure out a way for the legal system to make it possible for a victim of sexual assault to bring a legitimate accusation against her accused without being subjected to the second assault of the legal system itself -- as multiplied by the media's coverage -- and with a reasonable probability of something more than a suspended sentence or seven days in the county jail. Of course, the law must also protect those accused from any false accusations motivated by vindictiveness or an effort at blackmail. And hopefully, it will protect the privacy of all parties -- at least until the trial and appeals have concluded.

At a time when rape is being used as a military strategy by some countries' armies, and often seems to be treated less seriously by some of our prosecutors and judges than other forms of deliberate physical assault, we obviously still have a very, very long way to go before this problem is solved.

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