5 Points About the Lawsuit Against Strauss-Kahn

The woman who brought charges against the former IMF chief will have new advantages in civil court

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Image: Reuters

The New York Times reported Monday afternoon that Nafissatou Diallo, the woman who earlier this year accused former IMF Chief Dominique Strauss-Kahn of rape, has just filed a civil lawsuit seeking money damages against him. The lawsuit was filed in the Bronx, where Diallo lives, and it contends that Strauss-Kahn should be held financially accountable for a sexual attack in a Manhattan hotel room that "humiliated, degraded, violated and robbed" her of "her dignity as a woman."

With the filing, we have just entered a new phase in the Strauss-Kahn endgame. The first sign of the strategy were the "exclusive" interviews the alleged victim gave to media organizations a few weeks ago. And now this. It is clear that Diallo's attorneys are unwilling to wait any longer for prosecutors to spin the public story in her favor or to otherwise put any pressure on Strauss-Kahn, who is now a defendant two times over. Time is not on her side. Here are five quick points worth noting as you absorb this news.

1. The most important thing to always remember about a civil case (see, Simpson, O.J.) is that the burden of proof is much lower than it is in a criminal case. Prosecutors have to prove that Strauss-Kahn raped Diallo "beyond a reasonable doubt." Diallo's lawyers only have to prove that Strauss-Kahn raped their client "by a preponderance of the evidence." On a scale of 1-100, that represents the difference between a 95-5 certainty and a 51-49 certainty. And there are other, procedural advantages that Diallo the civil plaintiff will have that Diallo the criminal witness-victim will not.

2. It is rare for civil cases to be brought during the pendency of a criminal case. Where there is a conflict between the two, the criminal case always will prevail since it involves the potential loss of liberty, as opposed simply to the loss of money. This means that there won't be much discovery in the civil case while the criminal case is pending because Strauss-Kahn has the right to remain silent in the latter but not in the former. This new case immediately goes to the back of the line. Would Team Diallo have filed it had they thought the criminal case against Strauss-Kahn were marching toward trial? No. 

3. The filing of a civil lawsuit, while prosecutors are still mulling over what to do with the criminal case, tells me that Team Diallo reckons it has a better chance of settling with Strauss-Kahn now as part of a comprehensive settlement that would also do away with the criminal case. In this sense, Diallo wants the two cases linked together. And she wants prosecutors to help steer Strauss-Kahn toward his checkbook. We've seen this before in high-profile rape cases -- most notably the Kobe Byrant rape case. Will Strauss-Kahn's prosecutors sign off on a deal? 

4. The Times' suggests that Team Diallo was particularly clever in bringing the case in the Bronx rather than in Manhattan -- the idea being that Bronx jurors might be more sympathetic to one of their own. I don't buy it. I think it's a wash. But that doesn't mean it was a bad idea. The thought of having to schlep over to the Bronx for a trial like this is just one more pressure point on Strauss-Kahn designed to "encourage" him to reach a settlement. And, considering the Diallo allegation that women have been attacked by Strauss-Kahn in "hotel rooms around the world," that pressure is likely significant.

5. Even as Diallo formally makes her case against Strauss-Kahn, even as she signals her intent to fight in court for years, she also has signalled him that she is ready to deal. In fact, I would be surprised if the two sides haven't already had settlement discussions along the lines of No. 3 above. If it hasn't happened yet, it surely will happen soon. So now the focus ought to be even more intense on prosecutors. If they dismiss the case quickly, and without a global deal, it will give Strauss-Kahn more bargaining power against Diallo. If prosecutors do nothing, it will help Diallo at Strauss-Kahn's expense.

I'm still betting the whole thing goes away long before either of the trials. And this lawsuit makes that more, not less, likely. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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