Maybe he raped her, and maybe he didn’t. We’ll never know.
To be accurate here at the outset, contrary to what is commonly believed, Dominique Strauss-Kahn was not accused of raping hotel maid Nafissatou Diallo. Rather, he was charged with a total of seven counts of attempted rape, sexual assault, and unlawful imprisonment. (We’re trying to run a family-friendly website here so we’ll leave the more salacious details of the allegations out of our discussion. Anyone keen on learning them will find them neatly encapsulated in the Manhattan District Attorney’s Office motion for dismissal of the charges.)
Anyone experienced at dealing with sexual assault cases will tell you that only about one in every ten allegations results in a prosecutable case. The rest are rejected by prosecutors for a variety of defects, a common one of which is a lack of credibility on the part of the complainant. And rare indeed is the complainant so opulently lacking in credibility as was Ms. Diallo. “[I]t has become increasingly clear,” wrote the prosecutors in their motion, “that the complainant’s credibility cannot withstand the most basic evaluation.”
And they went further. From the motion for dismissal:
At the time of this indictment, all available evidence satisfied us that the complainant was reliable. But evidence gathered in our post-indictment investigation severely undermined her reliability as a witness in this case. 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 nature and number of the complainant’s falsehoods leave us unable to credit her version of events beyond a reasonable doubt, whatever the truth may be about the encounter between the complainant and the defendant. If we do not believe beyond a reasonable doubt, we cannot ask a jury to do so.
Diallo gave police and prosecutors three distinct and irreconcilable versions of what she did immediately after the alleged incident with Strauss-Kahn, making it impossible to present to a jury a consistent narrative of the charges. In one version, given under oath to a grand jury, she said that after being assaulted by Strauss-Kahn, she remained on the 28th floor of the hotel until she unexpectedly encountered her supervisor. In a second version, she claimed she cleaned another room on the same floor before reporting the incident to a supervisor. She later offered a third version which conflicted in many details with the first two.
“Not only does this impair her credibility as a witness,” wrote the prosecutors, “but those varying accounts make it difficult to ascertain what actually occurred in the critical time frame of 12:06 to 12:26, and we have no confidence that the complainant would tell the truth on this issue if she were called as a witness at trial.”
While the Manhattan District Attorney’s Office came to no conclusions about what occurred in Strauss-Kahn’s suite, prosecutors were burdened with Diallo’s false prior claim of being raped in her native country of Guinea. She dramatically and persuasively related the account to police and prosecutors, going so far as to show scars she attributed to the incident. She later admitted the claim had been wholly made up in order to enhance her bid for asylum in the United States.
“Knowing that her compelling manner cannot serve as a reliable measure of truthfulness,” wrote the prosecutors, “coupled with the number of falsehoods uncovered in our interviews with her, compel our conclusion that we are no longer convinced of the defendant’s guilt beyond a reasonable doubt, and cannot ask a jury to convict based on the complainant’s testimony.”
Predictably, the dismissal of the charges against Mr. Strauss-Kahn has disappointed and even outraged some victims’ rights advocates. “[A]dvocates said the dismissal relayed a chilling message that rich and powerful men were more likely to get away with sexual assaults,” reported the New York Times.
And it wasn’t just “advocates” who the Times reached out to for the story; they consulted “experts,” too, who of course see dire consequences arising from the dropping of charges against Strauss-Kahn.
“Experts said rape crisis centers usually see a drop in reported cases in the aftermath of high-profile sexual assault cases,” says America’s paper of record, “especially those in which the prosecution failed, like the case against Duke University lacrosse players; the recent acquittal, on the most serious charges, of two New York police officers who visited a drunk woman repeatedly in her apartment; and the William Kennedy Smith case in the 1990s.”
The decline in sexual assault reports after such high-profile cases strikes me as a myth, one similar to the long-debunked but persistent claim of increased domestic violence incidents on Super Bowl Sunday. But even if such a decline were verified, would these “experts” suggest that prosecutors charge and juries convict even people so manifestly innocent as were the Duke lacrosse players so as to avoid a chilling effect on the reporting of sexual assaults?
One writer who apparently thinks so is Hadley Freeman of the U.K.’s Guardian, who in the dismissal of charges against Strauss-Kahn sees a miscarriage of justice. “Maybe one day, in the pitiless light of hindsight,” she writes, “it will become clear why a woman’s false statements about her immigration status, made years ago, were deemed more pertinent to an accusation of attempted rape than the vaginal bruising she allegedly incurred during the encounter itself.”
But among other inaccuracies in the piece, Freeman’s reference to “vaginal bruising” misstates the evidence. From the motion to dismiss:
During her initial examination, the examiner noted no visible injuries to the complainant and documented that she had no trauma to her body or oral cavity. The only physical finding that the examiner noticed was “redness,” which was observed during the gynecological examination. The examiner could not say to a reasonable degree of medical certainty that this “redness” was a direct result of the incident, nor that it was even an injury or a bruise. The examiner stated that this finding could be attributed to the incident described by the complainant, but could be attributed to a host of other causes.
An opinion was solicited from a second expert on sexual assault, who “opined that although it was possible for the redness to have been caused by the defendant’s grabbing the complainant in the manner she had described, it was not likely caused by such an act.”
There is no doubt that there was a sexual encounter between Strauss-Kahn and Diallo in suite 2806 of the Sofitel hotel on May 14, 2011. Forensic evidence to that effect is unambiguous. And, contrary to the claims of those who say the authorities didn’t believe Diallo’s allegations against a prominent man, everything police and prosecutors did from the moment she reported the incident and through the indictment and subsequent investigation indicates they believed her, the lowly immigrant hotel maid, over the protestations of the rich and powerful accused. Only when Diallo was revealed to be a liar regarding so many aspects of the incident and her own background did prosecutors reach the only possible conclusion: that the charges could not be sustained on her testimony and therefore should be dismissed.
Strauss-Kahn’s supporters on both sides of the Atlantic take the decision as a vindication, as though there is no shame in a married man’s admitting to the briefest of sexual assignations with the help, one that involved, even seen in the light most favorable to him, no more romance or courtship than one sees in a pair of rutting animals.
Dominique Strauss-Kahn may not be a criminal, but he is no gentleman, either. Maybe that doesn’t matter in France, but it matters here in America. Or at least it used to. And if it doesn’t anymore, what a shame that is.
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