Drop the DSK Charges

Prosecutors don't have a viable criminal case against Strauss-Kahn--but the hotel maid should still get her day in civil court

Reuters

Nafissatou Diallo seems "vivid and compelling" when describing how (she says) Dominique Strauss-Kahn violently sexually assaulted her--though not when discussing her murky past, shady associates, $100,000 in bank deposits, and the like.

So says Newsweek, which interviewed her for a cover story. Many viewers of her TV appearances agree. So why shouldn't she get her day in court?

She should--in civil court. But not in criminal court, in part because of her history of telling vivid and compelling lies, including her invention of a years-ago fictional gang rape and her false statements about her movements immediately after the alleged Strauss-Kahn assault. Plus the inherent implausibility of her claim that a man she had never met suddenly rushed in naked from the bathroom while she was cleaning his suite, attacked her like a madman, and forced her without a weapon to perform oral sex.

Diallo's history of serial lying alone makes it clear that the prosecution could never prove Strauss-Kahn guilty of the violent sexual assault charged in the indictment beyond a reasonable doubt.

In short, Manhattan District Attorney Cyrus Vance Jr. should drop the case.

Remember the Duke lacrosse rape fraud? Remember Tawana Brawley?

Some seem to unlearn the lessons of such cases every time a poor (or not so poor) woman of color accuses a rich (or not so rich) white male of doing something horrible. Especially when the accused admits to conduct that was, at best, unseemly and crude.

The hard fact is that in a great many "he said, she said" cases--including this one--it is impossible to be confident of whether or not the woman consented.

The judgment underlying the criminal justice system's reasonable-doubt rule is that--as terrible as it is for a victim (especially of a sex crime) to see a criminal escape punishment--it is far, far worse for an innocent person to be convicted of a crime.

With understandable but unduly credulous empathy for the Guinean hotel maid, Newsweek (and ABC News, in a more balanced account) gave a big boost to her and her lawyer's virtually unprecedented PR campaign to pressure prosecutors to proceed. The DA's office has already aired doubts about Diallo's credibility, but the Diallo team knows that if prosecutors drop the case it would damage the multi-million dollar civil suit she plans to file.

For Diallo, the problem is that she has already confessed to a long list of lies. They include telling blood-curdling stories to prosecutors about being gang-raped and politically persecuted in her native Guinea. Those tales were so believable that, according to Linda Fairstein, who spent a quarter-century as Manhattan's chief sex crimes prosecutor, "experienced, senior people cried when she told her life story, in each of the agencies."

Later, she admitted that the stories came from a fictional script written by others, which she had memorized years before for use in her asylum application.

Other false statements cited by prosecutors include claiming too many dependents on her tax returns, understating her income to retain her rights to public housing, fabricated accounts to prosecutors and the grand jury of what she did after the May 14 incident in Manhattan's Sofitel Hotel, and more. Plus telling implausible--and inconsistent--stories about the alleged attack itself.

In short, Diallo has forfeited any chance of establishing beyond a reasonable doubt that, when she entered Strauss-Kahn's $3,000-a-night suite to clean it, he suddenly rushed naked out of the bathroom, acting like a madman, grabbed her breasts and crotch, pushed her and dragged her around the room, and assaulted her so brutally as to force her to perform oral sex on him.

(Lawyers for the former director of the International Monetary Fund and would-be president of France--whose semen was found on Diallo's clothes and the carpet--have admitted a sexual encounter. They say it was consensual.)

Of course I'll never know whether this encounter was entirely consensual. But I strongly believe that Diallo is at least overstating Strauss-Kahn's alleged brutality, and that there is plenty of reason to believe that this was not a violent sexual assault at all.

At the same time, the defense version of events is also rather implausible. The notion that Diallo would willingly perform oral sex on a complete stranger, in the space of less than eight minutes, strains credulity.

I speculate that something neither violent nor completely consensual happened, such as an aggressive attempt at seduction to which she consented for fear of angering a wealthy hotel guest. If so, Strauss-Kahn's conduct was deplorable--but was not the forcible sexual assault with which he has been charged.

But the main point is that nobody except Diallo and Strauss-Kahn can know beyond a reasonable doubt what happened between them--let alone whether she is telling the whole truth and nothing but the truth.

Why? First, because even Strauss-Kahn's notoriety as an aggressive womanizer, and even French writer Tristan Banon's claim that he tried to rape her in 2003, are not enough to make believable the bizarre and extraordinarily risky behavior attributed to him by Diallo. Especially given his apparent unconcern about what Diallo might do or say as he proceeded to meet his daughter for lunch, headed for the airport to fly to France, and then called back to hotel officials to ask them deliver to him his lost cell phone.

Second, because it's not easy to believe that a 5-foot, 8-inch, overweight, 62-year-old man without a weapon could force that kind of sex on a taller, fit-looking 32-year-old woman who (she says) was desperately trying to fight him off. Not impossible to imagine. But not easy.

Third, because no significant physical evidence of a violent struggle could be found either in Room 2806 or during the medical exams of Strauss-Kahn and Diallo.

Diallo's lawyer claims that the redness in an area of her genitals mentioned in a hospital report is evidence of a forcible encounter. But a medical expert knowledgeable with the detailed report has said that this is a minor injury with various possible causes, any of which is more likely to have brought about the redness than the kind of external grabbing that Diallo alleges occurred.

Fourth, because her meeting with a personal-injury lawyer the day after the alleged attack suggests at least the possibility that she was thinking about extracting money from Strauss-Kahn early on, perhaps even by the time of her first detailed accounts to investigators.

Fifth, and most important, because we know Diallo to be a serial liar. Witness her false claims of being gang raped. Also consider her three successive versions of what she did after the alleged attack in Room 2806.

Version 1: She first falsely told detectives, prosecutors, and the grand jury that she fled into the hallway, waited until she saw Strauss-Kahn leave the suite and enter an elevator, then reported the alleged attack to a supervisor.

Version 2: Several weeks later, she admitted this story was false and offered another--also false: She had entered another room, 2820, cleaned it, and then returned to the scene of the alleged crime and started to clean Room 2806.

Version 3: After prosecutors got magnetic key-card records showing that she had gone into Room 2820 for less than a minute before returning to 2806, she changed her story again, saying that she had previously cleaned 2820 and went back there after the alleged assault only to retrieve her cleaning supplies before re-entering 2806.

Why lie about such stuff? Perhaps Version 1 reflected concern that some people might be less likely to believe an accuser who had resumed her usual routine before reporting such a brutal assault. It's unclear why she went to Version 2. And Version 3 came only after the key-card records showed Versions 1 and 2 to be false.

A woman willing to lie about her own post-incident behavior to make her story more believable might also be willing to embellish in other ways, and perhaps to convert a consensual sexual encounter into a violent assault, or an ambiguous one, as speculated above.

Various Diallo accounts of the alleged assault itself are also inconsistent. For example, she told a sexual assault nurse that "he said nothing to her during the incident." Later she told Newsweek that he said quite a lot: "You don't have to be sorry . . . You're beautiful . . . You're not going to lose your job" and--after forcing his penis into her mouth--"suck my dick."

Reasonable doubts are everywhere. And that should be the end of any criminal case.