Understanding the criminal laws at issue in the DSK trial in France

Posted By Galluzzo & Arnone || 10-Feb-2015

Former International Monetary Fund chief Dominique Strauss-Kahn is charged with "aggravated procurement" for his alleged role in a French prostitution ring, facing up to 10 years to life imprisonment and a 1.5 million euros fine.

The facts go back to 2012 when DSK - as he is widely known in France - was taking part in several parties held in hotel rooms all over the world (Lille, Madrid, Vienna, but also New York and Washington), where prostitutes were paid to sleep with the participants. The two week trial, which started on Monday, February 2nd, 2015, before a French court, involves no less than fourteen defendants.

In addition to the political and media tumult, this case is raising numerous legal issues.

DSK is facing charges of "proxénétisme aggravé", which has been widely referred to as "pimping" but can more accurately be translated to "procurement" ; or more specifically in the state of New York to "promoting prostitution", as stated under section 230.15 of the NY State Penal Law.

Prostitution is not illegal in France, but only so long as it remains a strictly personal choice and an individual activity. Neither having sex in exchange for a fee nor patronizing a prostitute are forbidden, but soliciting is.

Any form of coercion, procurement or organization is illegal. A parallel can be made to the laws of states in which marijuana is “legalized”: growing and possessing marijuana for one’s own consumption is allowed, but selling it or organizing a network of users would be illegal.

Furthermore, the definition of "proxénétisme" and assimilated offenses - articles 225-5 and following of the Penal Code - is very broad. It encompasses the act of "pimping" in the most common sense - employing prostitutes and taking a cut from their earnings - but also every act that would encourage prostitution, including unclear links to prostitution. As an example, even the spouse of a prostitute can be charged with this offense if he or she unable to justify his or her means, or merely by sharing life expenses. More surprisingly, a customer who would recommend his favorite prostitute and give her or his number could fall under the scope of the law too.

Additionally, this offense does not even require a venal aspect, and the lack of any financial profit from prostitution does not prevent a court from charging someone. A mere assistance, putting two persons in contact, providing a location, or any profit of any kind, is enough under this law.

It clearly seems that the level of involvement is different for each defendant, as some are being charged with a more traditional form of procurement (e.g. the notorious pimp Dominique Alderweireld - aka Dodo la Saumure), and some being only linked to the prostitution ring for their remote assistance or unclear profit, such as is the case of the charges being leveled against DSK.

Finally, under French criminal law, offenses are said to be aggravated when they are committed under certain circumstances which are considered to worsen the offense, therefore increasing the maximum sentence. In this case, the offense is said aggravated because it was committed in a group, involving different perpetrators acting as authors and/or accomplices.

These rules combined thus explain the charges of "proxénétisme aggravé".

Assuming that these charges are accurate under French law, the next obvious question is whether they are typically brought, or whether they hide a political motive of the prosecutors or courts.

When taking a look at the number of defendants and the breadth of the network, it definitely appears it could be organized prostitution and procuring. Nonetheless, with regard to DSK alone, the facts seem to be a mere customer case, and that is the reason why the prosecution was calling for a dismissal of his case.

One of the particularities of this case is that some of the other defendants were the ones organizing the parties and paying for the prostitutes. DSK is not alleged to have ever paid the women with whom he had sex. This particularity can lead to two different outcomes.

DSK does not deny having had sex with women at these parties, but he claims that he did not know at the time that they were prostitutes. If the prosecution, who bears the burden of the proof, does not manage to establish this knowledge, DSK cannot be convicted of procuring because this offense requires a showing of intent. Proving he did not know is obviously more difficult since he did not pay.

On the opposite, if DSK is proven to have been aware the women were prostitutes, the fact that the parties were organized for him and that he did not pay becomes an issue. Indeed, he would then not be a classic client of prostitution, which would be perfectly legal but would involve paying for the service. In that hypothesis, he would not have paid the women and therefore would have knowingly benefited from the prostitution of another person, and therefore his conduct would fit one of the definitions of "proxénétisme".

The trial against DSK is without a doubt unusual, but then again it is also uncommon to have numerous huge parties organized for you where prostitutes are offered to you free of charge, one could argue. Nevertheless, it seems fairly obvious that the charges are unusual enough, and the evidence scant enough, for one to suspect that the pursuit of DSK on these charges is largely politically motivated.

Credit: Camille Molina, éléve-avocat of the Paris bar.