DSK Charges to be dropped: The prosecutors got it right

The XX Factor
What Women Really Think
Aug. 23 2011 11:14 AM

The DSK Prosecutors Get It Right

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Photo by DON EMMERT/AFP/Getty Images

Almost from start to finish, the DSK rape prosecution has been an ungodly mess. District Attorney Cyrus R. Vance Jr. was right to arrest Strauss-Kahn before he left the country, but wrong to ask the court to hold him without bail. That decision led to a rushed investigation and declarations about the "unwavering credibility" of DSK's accuser, Nafissatou Diallo, that were unnecessary and in the end untenable. As the French have and will continue to point out, this sorry chapter of the case should make us think hard about how our supposed standard of innocent till proven guilty collides with the reality of the media frenzy that follows a sensational indictment.

Diallo, for her part, was right to accuse a powerful man of sexual assault, if she was telling the truth, but wrong to lie to the DA's office and the grand jury about so many other details of her life. Personally, I believe her account of a forced sexual encounter. I also don't find any single falsehood she told along the way particularly damning. But her “pattern of untruthfulness,” as prosecutors put it in their motion to dismiss the charges against DSK, is too much.  I can also see that by telling a story of being gang raped in Guinea with tears and utter conviction, Diallo wrecked her credibility with prosecutors. For immigrants seeking asylum, there are plenty of incentives to tell such stories, as this recent New Yorker piece by Suketu Mehta convincingly shows. But that doesn't mean such a lie won't come back to bite you if you've moved from asylum applicant to criminal complainant.

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Diallo also didn't help the case by hiring a lawyer who filed a suit for civil damages even as Diallo professed she was not interested in financial gain from the case. The phone call she made to her felon fiance in prison is also a problem (though I finished reading the DA's motion today still unsure about its correct translation). And so we are left with DSK going free for a crime he may have committed, and one more high-profile reminder of the terrible difficulty of proving rape charges with no witnesses or clear proof of physical assault.

Still, there is one aspect of this case that prosecutors got exactly right. That’s their decision to end the case against DSK because they themselves do not credit Diallo’s testimony beyond a reasonable doubt. Prosecutors don’t have to hold themselves to this high standard: Legally speaking, as today’s motion acknowledges, they can pursue an indictment under New York’s rules of legal ethics if the charges are merely supported by probable cause. But the motion explains that “for generations, before determining whether a case should proceed to trial, felony prosecutors in New York County have insisted that they be personally convinced beyond a reasonable doubt of the defendant’s guilt, and believe themselves able to prove that guilt to a jury.” This is the right standard given the crushing weight of an indictment for the defendant. Prosecutors have the power to destroy people. They should use that power forcefully when they’re sure of the basis for the charges they bring, and refrain from using it at all when they’re not. That’s the single good lesson the DSK case teaches.

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones