Pour la deuxième année consécutive, l’IHEJ s’est associé au barreau de Philadelphie et à la faculté de droit de l’université de Villanova pour l’organisation d’une conférence sur un sujet d’actualité franco-américaine. Le thème retenu pour cette année a été l’affaire Strauss-Kahn et les malentendus qu’elle a occasionnés de part et d’autre de l’Atlantique. A l’occasion de cet événement, qui a eu lieu le 15 mars dernier, Irène Théry, sociologue à l’EHESS, a été invitée à représenter l’IHEJ, aux côtés d’Emilie Lounsberry, journaliste au Philadelphia Inquirer et de Michelle Dempsey, professeur de droit pénal à l’université de Villanova, dont nous publions ici la contribution.
The State of New York vs. Dominique Strauss-Kahn: A Critique of Prosecutorial Reasoning
In this brief essay, I critique the reasoning offered by the Manhattan District Attorneys in dismissing criminal charges against Dominique Strauss-Kahn in August 2011. To be clear, this essay does not take issue with the prosecutors’ ultimate decision to dismiss the charges against Strauss-Kahn. While I do believe that the prosecutors should have held Strauss-Kahn accountable at trial, this essay will not focus on the ultimate outcome of the case. Rather, this essay will focus on the reasons offered by the prosecution in their Recommendation for Dismissal, filed on August 11, 2011.
When prosecutors offer a public statement regarding their reasons for dismissing a criminal charge, it is crucial that they accurately state the relevant legal and evidentiary considerations underpinning their decision. Failure to do so reflects a failure of the prosecutors to hold themselves accountable to the public they are meant to serve. In the Strauss-Kahn case, several statements in prosecutors’ Recommendation for Dismissal misrepresent the legal and evidentiary considerations relevant to a determination of guilt in this case. These misrepresentations are problematic insofar as they constitute a failure of prosecutorial transparency and accountability.
To begin, a brief and blunt overview of the uncontested facts: in the Presidential Suite of the Sofitel Hotel on May 14, 2011, Dominique Strauss-Kahn ejaculated into the mouth of Nafissatou (“Nafi”) Diallo, a hotel housekeeper, after having met her for the first time approximately seven minutes beforehand. Diallo reported the incident to her supervisor shortly thereafter, and has consistently maintained that she did not consent to any sexual contact with Strauss-Kahn. Strauss-Kahn was charged with seven criminal offenses in connection with the incident, all of which were ultimately dismissed subsequent to the prosecutors filing the Recommendation for Dismissal.
In dismissing the charges against Strauss-Kahn, the prosecution adopted a commendable guiding principle: if prosecutors are not convinced beyond a reasonable doubt that a defendant is guilty of the charged offenses, the charges should be dismissed. Yet, the prosecutors’ faulty reasoning marred application of this general principle to the facts of this particular case. Below, I examine four ways in which the Recommendation for Dismissal reflects errors and omissions in reasoning as articulated by the Manhattan District Attorneys.
First, the Recommendation for Dismissal states that,”[t]he crimes charged in the indictment require the People to prove beyond a reasonable doubt that the defendant engaged in a sexual act with the complainant using forcible compulsion and without her consent.”However, this statement is not legally accurate since not all of charges against Strauss-Kahn required proof of forcible compulsion. Rather, one of the charges (“Sexual Abuse in the 3rd Degree”) required only that the prosecution prove that Strauss-Kahn subjected Diallo to sexual contact without her consent. Insofar as the prosecution’s Recommendation for Dismissal misrepresents this matter, the prosecutors have failed to hold themselves accountable for their decision to dismiss.
Second, the Recommendation for Dismissal states, “…for a trial jury to find the defendant guilty, it must be persuaded beyond a reasonable doubt that the complainant is credible.” Again, this statement is not accurate as a matter of law. A jury need not be persuaded beyond a reasonable doubt that a complainant is credible in order to convict a defendant of a criminal offense. Rather, a jury must be persuaded beyond a reasonable doubt that elements of the charged offense(s) have been established. While clearly there is a relationship between whether a jury finds a complainant credible and whether they find that the elements of an offense have been established, a jury’s verdict in a criminal case is always a determination of whether the elements of the offense have been proven, not whether the victim is credible. If it were otherwise, then it would be all but impossible to prosecute crimes committed against people who have generally poor credibility. The key legal issue in the Strauss-Kahn case was whether Diallo was telling the truth when she claimed that she did not consent to sexual contact with Strauss-Kahn – not whether she is a generally credible person. Again, insofar as the prosecution’s Recommendation for Dismissal misrepresents this matter, the prosecutors have failed to hold themselves accountable for their decision to dismiss.
A third problematic aspect of the reasoning articulated in the prosecution’s recommendation for dismissal concerns its characterization of the availability of circumstantial evidence in this case. As its name suggests, circumstantial evidence is evidence regarding the circumstances surrounding a particular event. Based on surrounding circumstances, the jury may infer that a particular event did or did not occur.
In proving any case, prosecutors may rely on both circumstantial evidence and direct evidence. Direct evidence, unlike circumstantial evidence, does not require the drawing of an inference. While the distinction between circumstantial and direct evidence is helpful in understanding the wide range of evidence that might be available in any given case, there is no legal effect to the distinction between them. That is, circumstantial evidence is not treated legally as a “second best” form of evidence. Rather, it is admissible in the same way that direct evidence is admissible – and criminal convictions can properly be sustained based solely on circumstantial evidence. Indeed in most sexual offenses, which typically occur in private without any third party eyewitnesses, the only direct evidence on the issue of consent is the testimony of the victim. As such, prosecutors typically rely on circumstantial evidence to flesh out the picture of what occurred.
In the Strauss-Kahn case, the prosecutors misrepresented the evidence available to establish guilt. The Recommendation for Dismissal states “[a]fter an extensive investigation, it is clear that proof of two critical elements, force and lack of consent, would rest solely on the testimony of the complaining witness at trial…”This statement is doubly misleading. First, it repeats the legally inaccurate claim discussed above regarding the elements of one of the charged offenses. Second, it misrepresents the evidence available in this case by claiming that proof of non-consent would rest solely on Ms. Diallo’s testimony, when in fact there were several pieces of circumstantial evidence that would have corroborated her testimony on this issue. Such evidence includes, inter alia, the following: (1) the fact that Strauss-Kahn left in a hurried state from the hotel shortly after the occurrence – thereby suggesting a consciousness of guilt; and (2) the fact that Strauss-Kahn initially lied about having any encounter with Ms. Diallo, and did not admit to the sexual encounter until after his DNA, mixed with her saliva, was recovered by crime scene investigators – by which time he could no longer plausibly deny having ejaculated into her mouth; (3) the fact that Ms. Diallo promptly reported the offense to her supervisor and has consistently maintained that she did not consent to any sexual contact with Strauss-Kahn.
Moreover, the circumstantial evidence in the case supports the conclusion that there is no plausible counter-narrative to explain what occurred in the hotel room. Circumstantial evidence regarding the timeline establishing that Strauss-Kahn ejaculated in Ms. Diallo’s mouth within approximately seven minutes of meeting her, combined with the lack of any previous relationship between the two, strongly suggests that this was not the kind of “hurried sexual encounter” (as the prosecutors’ characterized it) that might occur consensually in the context of a pre-existing intimate relationship. Furthermore, circumstantial evidence does not support the most widely suggested counter-narrative – that the event was not a sexual assault but instead prostitution. Rather, the circumstantial evidence weighs against this counter-narrative: the lack of any exchange of money, the lack of any prior arrangement to come to the room for that purpose, the lack of any evidence that Ms. Diallo had engaged in prostitution with other hotel guests while on duty, and the lack of any explanation as to why, if this had been a prostitution encounter, Ms. Diallo would have alleged that she was sexually assaulted.
Put simply, there is significant circumstantial evidence corroborating the truth of Ms. Diallo’s version of the events and no plausible counter-narrative. As such, despite generalized credibility concerns regarding Ms. Diallo, the circumstantial evidence in this case strongly indicates that she did not consent to sexual contact with Strauss-Kahn. By incorrectly claiming that the proof of Strauss-Kahn’s guilt “would rest solely on the testimony of the complaining witness at trial…” the prosecutors turned the public’s attention away from the circumstantial evidence in this case and made it appear as if Ms. Diallo’s testimony was the only available evidence of guilt. Thus, once again, insofar as the prosecution’s Recommendation for Dismissal misrepresents the available evidence, the prosecutors have failed to hold themselves accountable for their decision to dismiss.
Finally, the Recommendation for Dismissal states that, “[t]he physical, scientific, and other evidence establishes that the defendant engaged in a hurried sexual encounter with the complainant, but it does not independently establish her claim of a forcible, nonconsensual encounter.” However, this statement is irrelevant, since there is no need for the physical, scientific or other evidence to independently establish Ms. Diallo’s claims. Indeed, it would be a philosophical impossibility for physical or scientific evidence to independently prove non-consent, because non-consent is neither a physical nor scientific fact; it is either a state of mind or a communication in a social context. Moreover, as the prosecutors undoubtedly well know, establishing the elements of a criminal offense is not a matter of relying on any discrete set of evidence to “independently” prove the prosecution’s case. Rather, it is a matter of drawing upon all of the relevant evidence and drawing logical inferences from that evidence. As noted above, the “physical, scientific, and other evidence” does not stand alone in establishing the element of non-consent; it stands with and corroborates Diallo’s direct testimony. Thus, insofar as the prosecution’s Recommendation for Dismissal mistakenly suggests that “the physical, scientific, or other evidence” must independently establish Diallo’s claim of non-consent, the prosecutors have misrepresented this matter and thus failed to hold themselves accountable for their decision to dismiss.
The Manhattan District Attorney’s Office owed it to the People of New York, and most directly to Ms. Diallo, to offer a public accounting of the reasons explaining their decision to dismiss the charges against Strauss-Kahn. Such an accounting should have been based upon accurate statements regarding the relevant legal and evidentiary considerations. Yet, as this essay has demonstrated, several key misstatements informed the rationale of the prosecutors in this case. It is a matter of concern and cause for criticism that in offering an accounting of the dismissal, the prosecutors engaged in such misrepresentations. For, ultimately, prosecutors are meant to be public servants, transparent in their exercise of discretion and accountable to the polity they serve. Instead of living up to these norms of transparency and accountability, the prosecutors in the Strauss-Kahn case seem to have offered merely a post-hoc rationalization of their decision to dismiss – mischaracterizing legal and evidentiary issues to support the case for dismissal. As such, even those who applaud the dismissal should find reason to criticize the failure of the prosecutors to hold themselves fully accountable for their decision.
Professor Michelle Madden Dempsey
Villanova University School of Law
 My reasons in favor of continued prosecution have been articulated by a number of other authors. A view with which I am sympathetic can be found at Statement on cases against Dominique Strauss-Kahn in the U.S. and in France: women’s groups call for justice in cases of sexual violence, July 6, 2011.
 Note that Ms. Diallo has filed suit against the New York Post for libel in connection with the paper’s claim that she was engaged in prostitution. At this time, the libel litigation is pending.