Justice Michael J. Obus dismissed the rape charges against French politician Dominique Strauss-Kahn on Tuesday, after New York City prosecutors lost faith (PDF) in the accuser’s credibility. District Attorney Cyrus Vance told the court that, among other fabrications, Nafissatou Diallo lied about her finances on low-income housing forms and discussed extracting money from Strauss-Kahn in a call recorded between herself and her imprisoned fiance. (Slate’s William Saletan, however, doesn’t buy the prosecutors’ interpretation of the call.) Is it normal for prosecutors to investigate an alleged victim’s background?
Yes, to an extent. Prosecutors have to anticipate how the defense might attack an accuser’s credibility and gather whatever evidence is relevant to those claims. In almost all cases, prosecutors perform a criminal background check on the accuser. They typically ask an alleged rape victim about her sexual history, and might interview third parties to corroborate her statements. In cases involving a wealthy defendant and a poor accuser, the defense usually argues that the alleged victim is out for money, and a good defense attorney might tip the prosecution off to some of the accuser’s financial improprieties. When that happens, the prosecutors look into their star witness’s financial background to see whether she’s truly hard up for cash and whether she has pulled any scams in the past. If she won’t hand over her records voluntarily, they seek a subpoena.
Diallo’s phone conversations with her fiance were caught on tape because prisons record their inmates’ calls. Many facilities place signs next to the telephone informing the inmates of the practice. Once the district attorney’s office began to question Diallo’s credibility and learned that she had a fiance in prison, it would have been easy to obtain recordings of those conversations. And it wouldn’t have been the first time a prosecutor used this trick.
Bonus Explainer: Can Dominique Strauss-Kahn sue New York City for damaging his reputation? He could sue, but he’d lose. In New York, prosecutors have immunity from malicious prosecution lawsuits unless they far overstep the bounds of their jobs. Even if Strauss-Kahn could overcome the immunity, he’d have to prove that Vance acted without probable cause and with malicious intent. Because the semen on Diallo’s uniform belonged to Strauss-Kahn and because her initial accusations of a forcible encounter were prompt and consistent, Vance would have a very strong case. There is also no indication that Vance had illegitimate motives for seeking the indictment.
Strauss-Kahn would have a stronger malicious prosecution claim against Diallo. Her references to Strauss-Kahn having “a lot of money” in the phone conversation with her fiance could be used in an effort to persuade a jury that she fabricated the rape.
Still, it would probably be a tactical mistake for DSK to sue. The case would force a jury to rule on whether he raped Diallo, except they would use the civil preponderance of the evidence standard rather than the stricter “beyond a reasonable doubt” standard that applies in criminal trials. If he were to lose his civil case, the public might be more inclined to believe he raped Diallo. (Just ask O.J. Simpson.)
If Strauss-Kahn were to sue, he would be the second semi-celebrity to bring a malicious prosecution claim against New York City this summer. Rapper Foxy Brown is suing after the City dropped charges against her for mooning her neighbor. The case fell apart in July, when the prosecution’s only witness decided she wanted to put the incident behind her.
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Explainer thanks Anthony Barkow of the Center on the Administration of Criminal Law at New York University School of Law and Matthew Galluzzo of Galluzzo & Johnson, LLP.