- Associated Press - Wednesday, May 25, 2011

NEW YORK (AP) — With his DNA discovered on the woman who accused him of trying to rape her and forcing her to perform oral sex, former International Monetary Fund chief Dominique Strauss-Kahn may employ a consensual sex defense that poses risks for defendants and prosecutors alike.

Mr. Strauss-Kahn has shed little public light on his account of what happened between him and a housekeeper at a luxury New York hotel two weeks ago. But his lawyer has hinted at strategy, saying he doesn’t expect the evidence will show a forcible encounter.

If Mr. Strauss-Kahn ultimately acknowledges sexual contact with the woman, jurors will be left to analyze a tricky “he-said, she-said” confrontation, legal experts say.

“They’re really difficult cases because, by their very nature, nobody else is there,” said Brenda Smith, a professor at American University’s Washington College of Law in Washington who has studied sexual violence. Even DNA or other forensic evidence might establish sexual contact but still not prove an attack, “so it really is the credibility of the complainant and the defendant, and also the facts and information that each side can marshal to support their version of what occurred.”

For now, Mr. Strauss-Kahn is under house arrest in a Manhattan apartment on a total of $6 million in bond and cash bail, facing attempted rape and other charges. At the time of his May 14 arrest, the 62-year-old economist and diplomat led the powerful loan-making IMF and was considered a leading contender to challenge French President Nicolas Sarkozy.

Prosecutors say he chased down the maid in a penthouse suite, groped her, tried to pull down her pantyhose and forced her to perform oral sex.

The 32-year-old woman immediately told hotel staffers and then police, providing “a compelling and unwavering story” supported by findings from a physical exam, Manhattan Assistant District Attorney John “Artie” McConnell told a judge last week. Mr. Strauss-Kahn’s DNA was matched Monday with material on the maid’s uniform shirt, two people familiar with the investigation told the Associated Press.

The woman’s attorney, Jeffrey Shapiro, has said, “There is no way in which there is any aspect of this event which could be construed consensual in any manner.”

But Strauss-Kahn lawyer Benjamin Brafman has suggested that might be exactly how his camp construes it.

“The forensic evidence, we believe, will not be consistent with a forcible encounter,” he said in court last week. He and Mr. Strauss-Kahn’s other attorneys have declined to elaborate and wouldn’t comment on the case Tuesday.

Mr. Strauss-Kahn insists he is innocent, telling colleagues in his IMF resignation letter last week he would “devote all my strength, all my time, and all my energy” to proving it.

In general, consent is legally defined as positively cooperating in and understanding the act in question, said Robin Sax, a former Los Angeles sex-crimes prosecutor now in private practice.

There have been some famous defense successes. Accused of raping a woman in 1991 at his family’s estate in Palm Beach, Fla., William Kennedy Smith, a medical doctor, was acquitted of sexual battery. He’d met his accuser at a nightclub during a night out on the town with an uncle, the late U.S. Sen. Edward M. Kennedy.

Dr. Smith testified that the sex was consensual. He said he “felt sorry” for his accuser and acknowledged it was “foolish and irresponsible” for him to have unprotected sex with a woman he barely knew, but he said she was equally foolish. Jurors took about an hour to acquit him.

To some, such arguments can look like trying to sully the accuser, a potential pitfall for a defense if jurors find it objectionable.

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