- The Washington Times - Thursday, July 21, 2011

Much has been said about whether the prosecution should drop the Dominique Strauss-Kahn - aka DSK - sexual-assault case in light of recent revelations about information that undermines the complainant’s credibility. It is true that the more ammunition the defense has to impugn the general believability of the complainant, the more difficult the prosecution’s job.

Nonetheless, I still think it is a “triable” case, as we say in the trade. I say this not just on instinct and experience. The then-head of the International Monetary Fund was arrested in May on charges of attacking a New York City hotel maid. Even with the unknowns, one can analyze what factors will most influence the jury when the defendant asserts that the complainant consented, as DSK apparently would do. What if we inject a little soft science into the art of predicting whether it would be a wise decision for DSK or the prosecution to proceed to trial?

Based on the many consent defense cases I have seen during my career as a prosecutor of sex offenses, certain factors determine the outcome:

c Prior relationship: Did the parties have any kind of relationship before the incident? If yes, the chances of conviction go way down.

c Physical injuries: Does the victim have any injuries and are they consistent with her story? If not, proving that one beyond a reasonable doubt will be tough.

c Prompt report: The faster the victim reports, the higher the chances of conviction.

c Substance use: Did the victim voluntarily use any alcohol or drugs?

c Dress and her choices as to place: What was the victim wearing and did she choose to go into a private space with the defendant? A complainant dressed like Lady Gaga in the defendant’s apartment will face hard scrutiny from jurors.

c Finally, did the defendant make a threat or use a weapon?

One could say other factors, such as the general credibility of the victim, should be included. I disagree. As long as the victim has been consistent about the incident, other issues usually can be explained if the victim frankly admits them. The DSK complainant’s phone call to her incarcerated boyfriend where she allegedly talks about financial benefit? Well, who doesn’t need money? Is it unreasonable to tell a close friend you might end up with some money from a lawsuit after you’ve been attacked?

Moreover, I have not included the victim’s prior sexual history as a factor. Whatever it is, it is likely that the prosecution will be able to keep that out of evidence. Rape shield laws are designed to protect a rape victim from such humiliating scrutiny.

By applying these six factors with a bit of weighting - say pluses for prosecution points and minuses for defense points - one can get a pretty good idea of which side is likely to prevail based on a positive or negative balance. To check it out, I did a survey of a number of cases, celebrity and ordinary, to prove it. Let’s look at a few cases based on the factors, then apply them to DSK’s case.

Let’s begin with the case of William Kennedy Smith. He was the medical student accused of luring a woman to a Kennedy family manse in Palm Beach, Fla., and raping her after a swim on a private beach. He claimed the sex was consensual. 1) Prior relationship? Barely had met - plus 2 points. 2) Injuries? Minor - zero. 3) Prompt report? Fairly, so again, zero. 4) Use of substances? Some drinking, so minus one. 5) Dress and choices? Bad for the prosecution - the complainant voluntarily went with him to a private area at night and her dress reportedly showed no signs of distress. Minus 2 there, maybe minus 3. 6) Threats or weapons? None, so minus 2. Total? Minus 2 or 3 - a close case favoring the defense. Result? Acquittal.

How about the sexual assault case of sports announcer Marv Albert? Mr. Albert was accused of forcing a woman to perform oral sex on him in his hotel room. DNA linked Mr. Albert to bite marks on her back. He claimed consensual, rough sex and that her motives were scorn and greed, since she just lost her job. 1) A prior relationship? Trouble for the prosecution, as she admitted an intimate relationship, a devastating factor worth a minus 4, I believe. 2) Injuries? Yes, quite significant, a plus 2. 3) Prompt report? Yes, so plus 2. 4) Substance use? Some, so zero. 5) Dress and choices? Not good for the prosecution since she went into his suite at the Ritz, so minus 2. 6) Threats or weapons? Yes, verbal threats, so plus one, but no weapons, so minus one, zero balance. Total for the case? Minus 2. The defense had a decent chance of prevailing. Result? After the prosecution produced a surprise witness - a woman who claimed Mr. Albert assaulted her in the same way three years before - Mr. Albert pleaded guilty midtrial to a misdemeanor and avoided jail. While he might have been able to get off, the stakes were simply too high for him to reject a no-jail deal.

How about a case similar in some respects to DSK’s, a chance encounter where the allegation is forced oral sex? One rainy morning in Washington, a woman was hurrying to the subway. A man she didn’t know, driving a nice car, offered her a ride. She accepted. He asked her for a date and she refused. He darted into an alley, pulled a knife and forced her to perform oral sex. He then dropped her off at work, where she immediately reported it. The police found his car, a knife and fibers on the seat matching her clothing.

Story Continues →