Obviously, with today’s news regarding the ongoing Dominique Strauss-Kahn case, the usual suspects are starting to draw parallels between this case and the Duke lacrosse case — arguing that because this case might not actually go to trial, this is proof that rape doesn’t really happen, and that prosecutors are all to willing to listen to poor alleged victims instead of rich connected alleged perpetrators. No, really:
Was Dominique Strauss-Kahn a victim of the Duke lacrosse syndrome? Are prosecutors too ready to believe the feminist scenario in which powerful white men are the natural exploiters of subordinate women, especially poor minority women?
Because, as we all know, the American criminal justice system is clearly biased in favor of poor minority women.
Of course, the case is not collapsing because the woman has come out and admitted that she wasn’t raped, or because the prosecution has found exculpatory evidence, or because Strauss-Kahn’s evil twin surfaced in Queens. It’s collapsing because the alleged victim has a sordid past, one which has been mined effectively by the high-powered defense team of a very rich man. And in a case that ultimately hinges on the accuser’s testimony, that makes the case harder to prosecute.
But it’s important to note that this doesn’t mean no sexual assault happened. To be blunt, women who have criminal connections can still be raped. That may make it harder to win a conviction, even impossible. But that’s because we have a system — rightly — where defendants aren’t supposed to be imprisoned unless their guilt is proven beyond reasonable doubt.
This is why “not guilty” does not equal “innocent” — as anyone familiar with the O.J. Simpson case is well aware.
This case boils down to the old lie that a woman who is not virginal and pure can’t really be raped. Jill Filipovic unpacks it neatly:
All of this leads prosecutors to believe that she’s probably not a credible witness, and that DSK’s attorneys will destroy her on the witness stand. They’re probably right. Rape accusers seem to be treated with different expectations of perfection than people who report other crimes. Granted, this case is particularly high-profile, which means that prosecutors no doubt want it to be open-and-shut, making the accuser’s imperfections all the more troublesome. But I have a hard time believing that a woman with the exact same past would be considered too lacking in credibility had she accused someone of robbing her apartment or mugging her or beating her up. I have a hard time believing that if a man was punched in the face by a stranger on the street that prosecutors would drop the case if it came to light that the victim had cheated on his taxes seven years ago.
Even though these aren’t the typical “she’s a slut” attacks (although I’m counting down the minutes until someone suggests she’s a prostitute who had sex with DSK for money), there’s still an unreasonable level of virtue that we demand from any woman who says she was raped. This woman, like a lot of folks, has lied to save her own ass under dire circumstances. She called someone in jail to discuss the pros and cons of going forward with the rape accusations — something that sounds questionable unless you consider that the incarcerated person may have been her closest confidante, and I would certainly have that exact same conversation with my best friend if I were thinking of getting embroiled in a criminal case. There’s still physical evidence of sex, and physical evidence of assault. But it doesn’t matter, since she owns five cell phones (DSK owns seven) and lied about an unrelated issue and has some shady friends. Nothing that has come out about her indicates that she wasn’t raped. It just indicates that she’s no longer our ideal victim, and that’s enough to prevent the case from going forward.
Exactly right. And of course, no woman’s ever an ideal woman, because no human is perfect.
For the moment, the case is still going forward, and I hope it continues to. I would hate to think that prosecutors would send the message that women whose pasts are dodgy are free game for anyone who wants to rape them. We have far too many people doing that already.
Is it fair to say that there is a difference between evidence of having lied at some point in your past, and evidence of having lied to police while they were in the process of investigating the crime for which you are both a witness and a victim?
It is deplorable that we have a system where women who have led less-than-perfect lives in the past are viewed as especially suspect or less credible if they are victims of rape.
But is it unreasonable for either prosecutors or defense to decide that a witness is less credible if they actually lie to police during the process of investigating the crime? I don’t think that lying about, say, the sequence of events as pertains to a crime is the same thing as having an imperfect past.
Lying about something certainly does not mean that one was not raped, but exhibiting willingness to lie to police right now, while they are investigating a rape, has a very different effect on one’s credibility than lying ten years ago about something. I feel like there are two separate issues that are being conflated (although it seems like the New York Times article referenced in the linked blog also conflates the issues.)
I mean, the prosecution of course knows that jurors are going to see the survivor as less credible. The point is that it’s tragic that her past criminal activity, and an inconsistency in her story about what happened not during the assault but after, despite physical evidence* will probably make the case unwinnable, no matter now much damning evidence outside of her testimony the prosecution can/may be able to provide. That she lied about picking up and trying to go on after the assault has no bearing on whether or not an assault happened, and it’s tragic that damning physical evidence probably wouldn’t be enough; irrefutable physical proof (hypothetical since I don’t know the details in this case) would probably mean nothing when the rape apologetic culture allows the defense to play the he said she said (and she’s a liar so you can’t believe her bruises or his semen! She made that up! Somehow! She likes rough sex and does drugs and hates puppies and is therefore unrapable!) card. What’s even more tragic is that people are already latching on and saying he must be innocent because look! She lied about some irrelevant stuff and something tangentially relevant! She hates puppies! Rape can’t happen to liars who hate puppies! And that’s the point of Jill’s article, as I understood it.
*right now all they’re releasing is that there is DNA evidence, they are not disclosing injuries
I suppose it’s alright to link to the letter that is in the New York Times that the prosecution sent to the defense under the rules of discovery?
I mean the fact that this woman lied about her whereabouts after the alleged attack, and that she ended up going back into the room by herself after DSK had left – this isn’t to raise any questions about her credibility? The alleged “cash in”discussion she may have had with a prison inmate which is also detailed in the New York times – that doesn’t count either?
I ask these questions because on this blog at least some people seem to forget that if this lady did lie about DSK she basically has cost a very important man (someone supposedly beyond the reach of a mere peon in our “rape culture”) his job, alot of money, some of his freedom, possibly the chance to run for the Presidency of a country , and his good name – and all with a mere accusation and evidence of sexual contact.
I’m not sure if this is true or if we’re going to find out more about it, but I just read on the Guardian that this lady apparently admitted to having lied previously about being raped, as well. Don’t know the details, but I really, really hope this isn’t true.
Clarence, I know you’re not saying that an accusation of a crime shouldn’t be taken seriously and investigated if the accused is a powerful, politically important man.
So what are you saying?
Amp was very polite, but I want to add a comment before I begin my weekend.
It does not matter, at all, that the accused is a “very important” man. All men–all persons–have an equal right not to be accused of a crime they didn’t commit. All persons also deserve, equally, to be accused of any crime that they committed. So, nothing about the accused’s station in life, his wealth, his privilege or lack thereof, his good name (or lack thereof)–none of that matters. At all.
The only thing that a woman or a man who is considering accusing someone of rape should consider is the truth of their claim, and their own feelings about what the accusation process will involve for them. They have zero obligation to consider what the accusation will mean for the person they are accusing. (I’d argue that truth is a prima facie consideration, so if you take that into consideration first, you never have an ethical obligation to consider the accused.)
I’m saying that both alleged victim and alleged perp should be anonymous until the investigation is complete.
I’m saying there shouldn’t be any “perp walks” until a conviction is handed down.
I’m saying the notion of “rape culture” has to be at the least modified when one of the most powerful men in the world can lose an important job, be placed on house arrest (after spending some time in Rikers, mind you) with ankle bracelet, large bail, etc all on the say so and a evidence of sexual contact of a woman BEFORE an investigation was even completed. At least, however, with DSK and the maid the contact was admitted by both parties, the only thing to decide is “he said, she said”. Plenty of cases can be found on the web where there was no evidence of sexual contact whatsoever but the alleged perp still ends up in jail on “say so”.
And lastly, not to beat on Alas, which has mostly been fair about this, but the trial by media in this case largely had DSK convicted before the first bail hearing for chrissakes.
No, this new evidence doesn’t act to exonerate him. But its pretty strong evidence of credibility anyway, and as I pointed out in my first comment, contrary to Mr Fecke, some of the newly released evidence of lying by her does indeed concern lies she told about the day in question. She went back into the room after he left.
And that sloppiness is endemic to cases like these. For instance, I bet most commenters on this site (and you guys tend to be more wide-read than most) don’t know or didn’t know until the more recent stories pointed it out that DSK was at the airport to catch a flight that he had already scheduled. Heck, out on tons of blogs one can find people that seem to think DSK was at the airport after booking a last minute flight to France. Many people hear that DSK rushed from the hotel in order to get on the next flight -any flight- to France. He says it was because he was running late to lunch with his daughter. DSK himself was the one that tipped off the cops to where he was when he called the hotel to get one of his cellphones brought to him. From what I heard at places like Talkleft (a progressive defense oriented blog) according to the initial contact with cops, he thought they were hotel employees. In short, I don’t think his demeanor or behavior at that airport was that of a guilty man, but based on misinformation many people ASSUME things and they very much do think he was hightailing it out of the hotel to get on the next flight to France posthaste. Most of these people don’t even seem to know about him calling the hotel.
So yes, I want every alleged rape victim to have a full investigation done on his or her behalf. What I don’t like is the trial by media and -on the internet- trial by whatever makes ones world narrative seem good.
Phil:
That missed my point.
False rape accusations can be leveled at anyone of any station in life and they can devastate even the most powerful. If we truly didn’t take rape “seriously” or , at least, if the wealthy and powerful were as omnipotent as some on the left seem to think they are, I doubt DSK would have lost as much as he already has. Let’s assume he’s guilty: I can assure you he’s already lost much more than many rapists, so the moral of this story would seem to be that even wealth and power couldn’t shield him from the consequences of raping the hotel maid and cost him much more than many people can ever dream of having. Let’s assume he’s innocent: what do you even begin to say to him? Hey DSK, you are lucky. At least you didn’t go to prison and get raped!
Suing her isn’t going to do any good. I suppose if it’s proven or she admits to lying maybe they could imprison her before deporting her.
Have a good weekend.
I’m saying the notion of “rape culture” has to be at the least modified when one of the most powerful men in the world can lose an important job, be placed on house arrest (after spending some time in Rikers, mind you) with ankle bracelet, large bail, etc all on the say so and a evidence of sexual contact of a woman BEFORE an investigation was even completed.
Don’t forget that DSK was arrested while actually on an airplane about to leave the country after having left the hotel in an apparent hurry. It wasn’t unreasonable to consider him a flight (pun inevitable) risk and have him arrested while the investigation was continuing.
If DSK has suffered an injustice-and I can’t tell yet from the available evidence whether he has or not-then the injustice was a false accusation, period. His being detained after an accusation of a serious crime and apparent plans to flee the country were, again as far as I can tell on limited evidence, reasonable.
Dianne:
You are correct as far as the police are concerned. They didn’t have time to do a full investigation without grabbing him. I can understand that. I can even understand them taking his passport. He needed to be kept in the country.Rikers or a holding cell? I’m a bit more chary of just throwing people in jail when you haven’t completed an investigation. Take the Hofstra case for example. 4 of the 5 black boys were in jail for 3 or 4 days before the video on the phone surfaced. While there, held on several hundred thousand dollars bail, they got to hear lovely death threats.
Anyway while I can understand the initial arrest , it is a fact that the plane he was leaving on was one he had booked several days in advance. That the cops didn’t know this (and didn’t have time to check at the time) is perfectly understandable. That blogs, nearly 2 months after this all went down still seem to have many people who push the idea that he booked or was trying to book a plane at the last minute can only be ascribed to the unfortunate fact that few people are prone to really investigate things like this esp. when the initial headlines were as prejudiced and sensational as they were.
Clarance, prebooked flight or not, DSK was leaving the country just as he was accused of a serious crime. People who are accused of a serious crime and thought to be at risk of fleeing the country rather than facing the charges are supposed to be put in jail until their trial. That’s what it’s for. If being put in jail was an undue hardship on DSK then it is also an undue hardship on every kid from the Bronx accused (but not convicted) of selling drugs or on Timothy McVeigh before he was convicted or Saddam Hussein before his conviction (actually, did Hussein ever have a trial, even pro forma? I’m not sure.) If you’re arguing that pre-conviction detainment should be abolished, fine, but I don’t see any reason to say that DSK’s detainment was especially unjust.
Dianne:
I am indeed of the opinion that pre-trial detainment should be abolished for all crimes short of murder (body) and rape (where they have evidence of violence and not just sex)where one could make a case that the community needs to be kept safe.
I was not saying that DSK had some special injustice done to him by being detained, indeed I specifically stated that the police really had no choice but to at the minimum grab his passport and keep him in the country. I should also point out there are ways of detaining someone that don’t involve putting them in jailcells, so I’m more willing to expand pre trial detention to more crimes and less obviously violent claims of rape (evidence of sex but nothing else) provided its via such things as ankle bracelets or restrictions on movement within a community. We overuse the prison system and it is certainly not a safe place for many defendents. Plus being held in jail often causes one to lose a job, home, that sort of thing.
What I complained about in my last post was stupid or lazy or bigoted bloggers and posters who continue to say downright falsehoods about the case.
Not assault? Assault with a deadly weapon? Stalking? Arson? Burglary, especially in an occupied house at night? Criminal threatening? Kidnapping?
There are plenty of crimes which involve significant risk if you leave an accused perpetrator loose, and there are always circumstances which mitigate the risk and warrant release on bail. That’s why there’s a system in place so that human beings can exercise judgement.
Also, rape is never “just sex”. Rape is not sex. Rape is never sex. Rape is a violation of personal boundaries, like assault and/or battery (depending on your local law’s definitions). Mayhem is not surgery, and rape is not sex.
Grace
Grace:
I was talking about the evidence left behind by rape. Sometimes there is evidence of violence and sex or violent sex. Sometimes there is no evidence of anything but sex like someone might have in a fully consensual manner. I’m sorry, but mere evidence of sex isn’t enough evidence to convince me that someone is some sort of menace to society before a trial has even concluded.
Kidnapping? Did they catch the perp with the victim in their clutches? Otherwise, no. Assault? Is there physical evidence? If you want me to say that actual physical evidence of violence should mean something in terms of pre-trial detention I might agree with you. But mere accusations? Nope.
Clarence:
“All crimes.” But I offered a few examples, and you agreed that those might count, too:
So, if I’m understanding you clearly after your comment @14, your comment @12 about abolishing the holding of a suspect was meant to apply only to cases where there was accusation but no convincing evidence of a crime.
In which case, okay. Then we’re just down to arguing over what constitutes probable cause. Fortunately, there’s actually a system for that. Cops, lawyers and judges do that all the time.
If the justice system is to function at all, the accused must appear in court. It should be beyond argument that sometimes they don’t, and that even in very high profile cases for very serious crimes, where the suspect’s location is known, it can be very hard to get them back. See the case of Roman Polanski.
Even in minor cases, society expends significant effort getting people into court at all. In my jurisdiction, if you don’t show up in court, a bench warrant is issued for your arrest. When we find you, we arrest you… and you’re given a court date and bailed out on a promised to appear, very often on personal recognizance bail (you don’t have to front the money). Then, if you don’t show up, a bench warrant is issued for your arrest…
Wash, rinse, repeat. I’ve seen it go through more than four cycles, and take over a year just to get someone into court on a minor misdemeanor involving no jail time. Sometimes, by that time, key witnesses have moved or died (of unrelated causes) and the trial can’t effectively go forward. Each arrest costs the taxpayers, oh, a couple hundred dollars in pay for the officer(s) and ancillary costs, even in cases where they turn themselves in at the station.
The accused has the benefit of lots of protections: a high threshold of proof (beyond a reasonable doubt), lack of arrest except on probable cause, the right to face and cross-examine witnesses, the right examine evidence, the right to counsel, etc. It seems very reasonable to me that society is permitted to take substantive steps to see to it that the actually show up. And one of the more important criteria is how easy it would be to get them back if they don’t show.
Grace
Grace:
See my earlier posts where I talked about ankle bracelets and things of that nature. Obviously DSK’s passport needed to be confiscated for example.
My overall point is that I don’t like putting people in jail (to “hold them”) based on no physical evidence of harm whatsoever. In those cases where it might still make sense to detain someone but you have no physical proof there are now other methods that could be employed. As it currently stands (and you seem very familiar with the Criminal Justice system, perhaps you work in it?) you know that some people lose jobs, money, and time for things that never make it to trial or that are summarily dismissed at trial. A few of these unfortunates suffer prison rape or other assaults without even being technically “in prison” since things of that nature do occur in jails as well.
What do you tell that person? Well, um, we got a complaint, so we had “probable cause” so..um..sorry….
I’m a police officer. I work in A criminal justice system; I’m cautious about generalizing from my experience to ALL criminal justice systems.
I agree that it’s problematical, working with crimes where there is no physical evidence, or where the physical evidence does not speak to whether there is a crime. Such situations abound:
Criminal threatening.
Example: one person holding a knife says, “I’m going to kill you” to another person, but does not actually stab the other person, who is nonetheless terrified.
Example: a prisoner in custody, with a history of violent assault, looks the transport driver in the eye and says, “I’m going to shoot you right between the eyes with a .30-06, and then I’m going to rape your wife and children”, but the prisoner cannot act immediately on the threat, being handcuffed in the back of a police car.
Reckless driving.
Example: a driver is having fun texting her friends and narrowly misses the mother-and-baby-stroller in the crosswalk, but does not hit them, and in fact never sees them.
Some assaults.
Example: two people are working together, building a house. One has a long pipe over his shoulder and hits another person with it, causing a bruise. First person says it was accidental, second person says it was deliberate.
Stop signs.
Example: officer watches the light turn red, counts “one thousand one”, watches car cross the stop line, and the intersection. Driver swears up and down the light was yellow.
Disorderly conduct.
Example: one person walks up to another person possessing an ordinary level of personal restraint and says something so offensive that the second person becomes white-knuckle enraged.
I could go on all day. I have personally witnessed all of the above and many more. In the second criminal threatening example, the speaker was addressing me.
There is no physical evidence, in these cases. Some probably don’t warrant physical detention (like the last one). Some definitely do (like the first two). That’s why there’s a process where both sides can argue the case and magistrate gets to make the call. Sometimes circumstances require an immediate arrest, and in those cases you bring the arrested person before a magistrate without unreasonable delay and the magistrate decides if you were right or wrong. The magistrate tries to balance competing harms.
This part of the system actually works very well, because humans do 50/50 decisions on the evidence pretty efficiently, though as you point out, sometimes consequences attach from arrest which are actually as severe as the criminal penalties, or moreso.
Well, first, a complaint is not probable cause. There is no single definition of probable cause, but this is one example: Facts and circumstances which would lead a person of ordinary caution to believe that it is more likely than not that a crime has been committed and that the person to be arrested committed it.
Second, a complaint never exists in a vacuum. There are always other factors you can consider, even if they’re not as tangible as we would like: what is the victim’s demeanor? Are there other witnesses? Is the victim’s statement internally consistent (knowing that apparently inconsistent behavior can be utterly normal for a person processing a trauma)? Is the victim’s statement consistent with known facts (same caveat)? If you can locate the suspect prior to requesting the warrant or having to decide to arrest, what is the suspect’s demeanor and account? And so on. That’s how you determine probable cause, by considering what the Supreme Court has called “the totality of the circumstances”.
Example: DWI arrest. None of these pieces of evidence, by itself, means that a person is impaired through consumption of alcohol and/or controlled substances: bloodshot eyes, slurred speech, admission of some amount of drinking, slow reaction time, poor physical coordination, odor of alcoholic beverages and alcohol metabolites on the breath, open container of alcohol in the car, pants wet with urine, shirt wet with vomit. Some could indicate a medical problem. Some could indicate fatigue, or psychological distress. But put a few of them together, and you’re probably looking at someone who is impaired through the consumption of alcohol.
I know an officer of extensive experience who pulled a driver over for being all over the road, including the oncoming lane. The driver was clearly impaired: barely able to stand, slurred speech, slow reactions, eyes heavy, miserably bad performance on the field sobriety tests. But he swore up and down that he had had nothing to drink and was just driving home from work. The officer arrested him and drove him to the station. The breath machine malfunctioned, so he drove him to a neighboring jurisdiction to use theirs. And the driver became rapidly more sober during the driving around, until by the time he was tested, about 45 minutes later, he was bright-eyed, bushy-tailed, and showing none of the symptoms which had been so clear earlier. He blew 0.00% on the breath machine. The officer, utterly perplexed, drove the man back to his van. And at the van, he finally figured out what had happened: the man was a painter, driving home from a painting job, and a container of paint thinner was leaking in the back of his van. The fumes didn’t smell like much, but in the confined space of the van, with the windows up and the vents closed, the painter unwittingly dosed himself until he was definitely impaired.
In an ideal world, the officer would have figured it out prior to the arrest. But the officer didn’t have any reason to search the van, and could not smell the fumes while standing outside the driver’s door, and once the driver stepped out, he was more concerned with safety at the scene and assessing the driver’s impairment. His “mistake”, if you even want to call it that, is perfectly understandable.
So what do you tell that person? Well, you start with, “I’m sorry” and continue until you’ve made it as right as you can.
But it seems to me that you are objecting to water being wet. This is a human system; there will always be mistakes and abuses. We work to avoid them, but they’re going to happen at some non-zero rate. So then, ethical people do what they can to make it as right as possible. And sometimes you can’t. And it sucks, for everyone involved.
And that’s life, with momentous decisions made under pressure, by humans, on the basis of incomplete and sometimes deceptive information.
Grace
I’m curious about some of the male posters here (like Ampersand): Would your attitude change at all if you were falsely accused of rape? If you spent lots of pre-trial time in jail on it, if the entire blogger community and feminists sites turned against you?
It could never happen to you? It only happens to scumbags (like the Duke guys), and you are not a scumbag so you will never have to worry about it?
I don’t understand this willing blindness to the havoc that false accusations can cause.