New York Sex Crimes Defense Lawyer Analyzes the Recent Developments in the Dominique Strauss-Kahn Case

Posted By Galluzzo and Johnson LLP || 1-Jul-2011

On June 30, the New York Times reported a shocking development in the prosecution of former IMF chief Dominique Strauss-Kahn. Apparently, investigators from the District Attorney’s Office have learned shocking new details about the complaining witness (a hotel maid from the Sofitel) that have caused the prosecutors to have serious doubts about her credibility.  These problems with her credibility are considered so serious that the prosecutors may in fact dismiss the indictment against Mr. Strauss-Kahn. At the least, his bail conditions are expected to be modified on Friday, July 1 (allowing DSK to travel and be free from house arrest), as prosecutors decide what to do.

Specifically, investigators from the DA’s Office have supposedly learned that the complainant may have lied about a prior rape and genital mutilation that she reported on her American asylum application.  They also appear to have good reason to believe that she has been laundering money for large-scale marijuana dealers: she has supposedly received approximately $100,000 in payments to various bank accounts operated by her throughout the country over the course of the past two years, including payments from a prison inmate charged with possessing 400 pounds of marijuana.  The New York Times reported that investigators discovered a recorded telephone conversation between this inmate and the complaining witness in which she discussed the “potential benefits” of cooperating with the prosecution of Mr. Strauss-Kahn (we assume that the New York Times meant to say that they were discussing the possibility of winning millions of dollars from Strauss-Kahn in a civil lawsuit).   (Note to inmates and their families: Yes, the DA’s Office is recording your conversations and listening to them, and they can and do use your conversations against you.)   Prosecutors and investigators have almost certainly confronted the complaining witness and her attorney with this new information, and I am guessing that her explanations were not satisfactory.

If these allegations about her are true then the prosecutors are not going to have any choice but to dismiss the case, in my opinion.  Even with DNA evidence proving that a sexual encounter took place, a jury could not be convinced beyond a reasonable doubt of such serious charges.  As a former rape prosecutor, I can tell you that rape cases are hard enough to win without this sort of explosive impeachment evidence.  More importantly, though, is the fact that a prosecutor almost certainly should not be convinced by someone with these credibility issues, either.  After all, a prosecutor has a responsibility to be appropriately skeptical of his complainants; otherwise, he runs the obvious risk of wrongfully accusing/convicting someone.

Some people (and probably the entire nation of France) will say that the prosecutors rushed to judgment in this case.  However, I honestly believe that the DA’s Office deserves to be commended for their approach to the case.  The prosecutors were forced to make a quick charging decision in this matter because Mr. Strauss-Kahn was obviously a flight risk.  Indeed, he was literally only a few minutes away from leaving the country on a plane when he was arrested.  In light of the seriousness of the charges and France’s extradition relationship with the United States, the prosecutors definitely risked losing their suspect altogether without serious bail (as is currently in place).  It is crucially important to understand, too, that New York prosecutors that want to keep their suspects in custody (or subject to bail conditions) have only about one week after the arrest to decide whether or not to present a case to a Grand Jury for formal indictment (this is explained in Criminal Procedure Law Section 180.80).  Given that the suspect made a prompt report to the police and that there was DNA evidence and possibly medical evidence corroborating her story, the DA’s Office was probably right to act the way that they did and charge him as they did when they did based on the evidence they had at the time.  If the prosecutors had declined to indict him by the “180.80 date” deadline and allowed him to be released, he might have (some might say “probably would have”) fled to France and never returned.  Needless to say, allowing a rape suspect of Mr. Strauss-Kahn’s significance to become a permanently untouchable fugitive due to prosecutorial hesitance or indecision would have been inexcusable under those circumstances. It is to the prosecutors’ credit that they continued to investigate their complainant as diligently as they did before ultimately condemning Mr. Strauss-Kahn, though.

Of course, there is another big unanswered question here: was she, in fact, telling the truth?  She very well might have told the truth to prosecutors and police, as even liars and money launderers get raped sometimes.  But, the simple fact of the matter is that the DA’s Office cannot responsibly rely on her testimony.  Thus there appear to be two possibilities in this case: either Mr. Strauss-Kahn is totally innocent in reality and never forcibly assaulted her… or, he was simply lucky enough to have selected a victim with too many legitimate questions about her credibility.  (Someone somewhere will undoubtedly argue that this case demonstrates that a rape victim cannot get justice if she has made mistakes in her life, and that that is unfair.  That argument may have some merit, but I am not prepared to say anything more on this very explosive subject except that it is simply an unfortunate reality for victims that women that have lied about significant details in their life that bear directly on their credibility are not likely to be trusted by prosecutors with respect to their rape accusations, and that will probably be true forever.)

Thus, this whole affair is tremendously sad for a number of reasons.  Falsely accusing someone of a rape/sexual assault is abhorrent, and if DSK was falsely accused, then we should feel sorry for him.  (Of course, we don’t really know whether the rape accusation was false, but we do know that DSK won’t be convicted of it).  On the flip side, it is possible that a true rape victim will not be getting justice in this case, and that would be tragic.  Also, one has to wonder whether this affair will make it even more difficult for true rape victims to get justice in the future, which would be a terribly unfortunate result.  The truth is  probably going to be a victim, too, unfortunately, as I suspect that we will never get the answers we wanted about what happened.

The writer of this article, Matthew Galluzzo, is a criminal defense attorney and former Assistant District Attorney in the Sex Crimes Unit of the New York County District Attorney’s Office. He has been interviewed on television and in print media numerous times as an expert on sex crimes prosecutions and volunteers his time to train prosecutors in investigative techniques.  If you or a loved one have been a victim of a rape and wish to speak with an attorney with expertise in the field, or if you have been falsely accused of a rape or a sexual assault, contact him to schedule an appointment.

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