Aug 23, 2011

Rich white man in evading justice shocker

Let's get one thing straight right away: the rape case against Dominique Strauss Kahn was dropped because the woman accusing him was not considered good enough to deserve state justice. That's it.

It doesn't actually matter if you think she wasn't considered good enough because of her race, her immigration status, her past, her behaviour right after the attack, what she told the prosecutors and how she told it. At the end of the day, the state has decided that a person against whom a crime was allegedly committed is missing something essential that would make them eligible for the state's protection.

A criminal offence is an offence against the state; when you are sent to prison for looting, you are not being punished for hurting the person whose shop window you stove in, but for violating the law of the land. The shop's owner may or may not be involved in your trial, and if they are it will be as a witness only.

When you read about rape cases as much as I do though, you realise that we live in this completely topsy turvy world in which women[1] who allege rape are not treated like witnesses in a criminal trial, but litigants in a libel case: they are invested with a responsibility of proving that a crime has been committed.

Women, under this system, are not considered to be as automatically deserving of the state's full legal might backing them up like, say, elderly barbers are. Only if they prove, outside of a court of law and under unwritten rules rife with Catch-22s, that a crime has been committed against them, will the state mobilise for the defence of its own laws.

What this means in effect is that there is a shadow court trailing women in high profile rape cases: while it is their alleged attacker who is facing prosecution, he is at least protected by the legal principle of presumed innocence. The accuser meanwhile has no such protection, because technically she is only a bystander in a showdown between the state and the accused, and witnesses have few rights in the criminal system (anonymity being one of the few available ones, and that has been recently challenged in the UK).

Women get caught between the social impulse to blame them for sexual transgression and exonerate the men involved (this is much more pronounced for famous, powerful men to whom many have given their allegiance), and the lack of any systemic barriers to doing so. They are placed in the impossible position of having to justify the criminality of the attack on them - somehow, passively and without any access to the apparatus of the legal system, to make a case that they are as important and as capable of being attacked as a barber shop.


[1] I use the word women advisedly. Men do suffer rape, at rates that though low are still completely unacceptable; but, while there are social barriers to them reporting these attacks, once they do they do not face anything like the systemic obstacles and prejudices that women do. So while rape is a problem of all sexes and genders, cases like Diallo's are a problem specifically for women.



  1. While most of your points stand, and the behaviour of the prosecutors smells pretty bad, isn't it more likely that rather than her not being considered good enough to deserve state justice, it's that she's not considered reliable enough a witness to secure a conviction. An important difference.

  2. Well, it's just that I think when someone is seen as an unreliable witness in a crime that's been committed against them, and that causes the prosecution to drop charges, that means that person - even if they are a bad person and we don't have sympathy for them - is just beyond the reach of criminality (as in, criminality as directed against them).

    A gangster, or a football hooligan, can be murdered/manslaughtered; but it's virtually unheard of for someone to be convicted of raping a prostitute, for example. There are, in the general run of criminal trials, cases in which there are unreliable witnesses underpinning a prosecution, but then that's what physical evidence and expert witnesses are for etc.

    It's only - or predominantly - in rape trials that an unreliable witness can undermine the whole case (and that's before getting in to ANY of the thorny issues of how we'd found out a rape victim "lied", what the standard of proof for those "lies" are outside of court, what might have driven her to behave that way or any context like that).

    So different standards obviously apply, and in my view it's still correct to say that in aggregate these different standards add up to women having an inferior standing in law as regards criminal acts being committed against them.

    Which is not as controversial as it sounds - marital rape and wife beating are relative newcomers to the category of "crime" anyway, and in most of the world today a rape is still an offence the woman gets punished for. It's just that our discourse about the issue is particularly disingenuous, and I wanted to highlight that.

  3. "The accuser meanwhile has no such protection, because technically she is only a bystander in a showdown between the state and the accused."

    This is very well articulated, and I think it goes a long way to explain why seemingly sane people can be so prone to victim-blaming. The systems in place are actively encouraging it, by giving more rights to the defendant than the "witness."

    How do you suggest this might be rectified?

    It would seem to me an improvement if in sexual assault cases there could be a third verdict: guilty, not guilty, or unresolved (for cases, like this, where the verdict is unclear or indeterminable.) The person would be free, and have no criminal record, but if they were brought to court again for a similar accusation, any evidence from prior unresolved cases could be used to aid the course of justice.

  4. I think the idae about unresolved verdicts that are admissible in future trial (and/or available to police) is a good one. It would have to be thought out very carefully to untangle any possible snags about privacy and so on, but in principle it sounds good. Certainly at the moment part of the problem is that the accuser's sexual past is admissible in court while that of the accused is not.

    Iv'e been becoming gradually more convinced that we need to take sexual assault trials out of the jury system and put them into the hands of specialist judges, as in the case of family courts. The cognitive and social biases operating on the juries are too powerful; sometimes, virtually nothing, not even written confessions backed up by evidence, can make them convict if they see the woman as an "unworthy" victim.

  5. In fairness, a jury does have a valid reason for doubting the validity of a written confession, since the case won't be in front of them unless the defendant has entered a "not guilty" plea and has by definition retracted any admission of wrongdoing; irrespective of whether it's the original or the subsequent position that is a lie, the jury is aware that the accused's testimony is not automatically reliable...

    It's also untrue to say that the sexual past of the accused is not admissible in court. Evidence of 'bad character' up to including details of previous convictions and unproven accusations may be allowed under current rules, although the decision lies with the court as to whether to admit any particular details.

    All this said, I'd agree with you entirely that cases of sexual assault should be taken outside the jury system and handled by specialist judiciary, preferably acting in panels rather than individually. How transparent one makes such a system would need to be debated, but I suspect there would be a far greater chance of getting at the truth of many sexual offence cases if it were in place.

  6. Yes, agree about panels - was thinking much the same. Also good point about transparency, though hopefully it would be easier to think through in the absence of children involved.

    There was a very high profile case recently of 2 police officers in NYC who were acquitted of rape despite admitting to having repeated sex with a woman who was too intoxicated to consent or object at the time. The jurors felt that even though they had sex with her without consent, she had brought it on herself by getting drunk. This is a very common situation, where the accused admit all the facts but deny the offence, and are believed.

  7. I take your point; in a case like that where the determination of the status of the action is being effectively left to a lay jury, there's far too much potential for prejudice to get in the way of justice.