- The Washington Times - Thursday, July 21, 2011

ANALYSIS/OPINION:

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.

At trial, he claimed consent. Conviction or acquittal? 1) Prior relationship? No, so plus 2. 2) Physical injuries? None, so minus 2. 3) Prompt report? Yes, she ran crying to her supervisor, so plus 2. 4) No use of substances, so plus one. 5) Dress and choices? While her dress was modest, stepping into the car of a stranger was questionable, so zero. 6) Threats or weapons? He threatened her with a knife, so plus 2. The total? Plus 7, meaning highly likely conviction. The result? James Howell was found guilty of first-degree sexual assault and sentenced to 12 to 36 years in prison. The penalties for forcible oral sex can be stiff, even in cases with no injuries to the victim and no other eyewitnesses.

How does the DSK case measure up? 1) Prior relationship? None, so plus 2. 2) On injuries, reports indicate some injuries (bruises, possible genital trauma and a torn shoulder tendon) but not severe ones, plus torn pantyhose, so let’s give that a plus one. Much could hinge on expert testimony about whether the injuries are consistent with exactly what the complainant states happened in that suite at the Sofitel. 3) A “prompt report,” has slid from a prosecution asset to a neutral as we have watched the prosecution’s case degrade. First, we were told the victim had come running to her supervisor, then we learned that she had gone to clean another room, re-entered DSK’s room, then reported. Maybe she can explain her behavior by shock or fear, but the sting of a changed report likely will remain. On balance, let’s say zero points. On Factor 4, no alcohol or drug use, so plus one. For Factor 5, dress and choices, the complainant was in her uniform simply doing her job, so a plus 2 there. For threats or weapons, none known - she reports that no conversation took place - so, minus two.

Our total? Plus 4. That indicates that the prosecution has a very triable case. Furthermore, reports indicate that the victim has remained consistent on the key facts of what happened inside his suite. Even so, DSK could get lucky, a la basketball player Kobe Bryant, if the victim self-destructs and the prosecution is forced to dismiss. I would not count on it, because this alleged victim is older and made of sterner stuff than was that complainant, a 19-year-old former cheerleader who had tried out unsuccessfully for “American Idol.”

Unknowns lurk at trial. The judge could permit testimony from other alleged victims claiming they were attacked by DSK in the same way. Allegations from French novelist Tristane Banon that she, too, was sexually assaulted by DSK appear too dissimilar to be admitted. At the end of the day, while no one can know the outcome of a trial when the stakes are this high, if you were in DSK’s shoes, wouldn’t you have to give serious thought to any kind of deal you could get where you avoid jail and can leave the country quietly?

Jeanne M. Hauch is a former assistant U.S. attorney and sex-crimes prosecutor.

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