Monday, July 04, 2011

Strauss-Kahn for the 4th of July

By Mike Dorf


My readership dips substantially on weekends and holidays, so normally I just take a pass. But I couldn't resist throwing something up here for you diehards who have nothing better to do this holiday weekend. I'll raise two sets of issues.

1) The elimination of the bail conditions (except for the limitation on foreign travel) is a somewhat odd response to the alleged victim's newly-revealed credibility issues. The main point of bail or jail pending trial is to ensure the defendant's appearance in court. The Supreme Court has also allowed that public safety can justify high bail or the denial of bail where the defendant is very dangerous. So, what's going on here? Presumably the logic is that now that we know that the case against Strauss-Kahn is weaker than we thought, he's less likely to flee the jurisdiction, because he has a better shot if he stays and fights the charges at trial. That is logical, I suppose, but weird. I don't think that the strength of the government case is usually a major factor in assessing flight risk. Or perhaps the doubts about the government's case mean that it's less likely that he's dangerous? That too seems odd. Is there some other way in which the victim's credibility issues might explain the lifting of house arrest?

2) I don't know enough about the conversation the alleged victim had with her imprisoned drug-dealer friend to have a view about whether it provides strong evidence that she falsely described a consensual sexual encounter with Monsieur S-K as violent simply to be able to cash in--although the physical evidence still appears to point in the direction of truth-telling. In any event, we might consider whether the criminal justice system faces a broader problem arising out of financial incentives to fabricate.

Suppose V alleges that D committed some violent criminal act against V. That criminal act is also going to be a tort for which V is entitled to damages and, in most jurisdictions, if D is convicted of the offense, then when V sues D for damages, V can raise the criminal conviction to collaterally estop D from mounting a factual defense. That's because a jury's conclusion that D is guilty beyond a reasonable doubt is more than enough to support the conclusion in the civil case that it is more likely than not that D committed the wrong against V.  In addition, if the case is sufficiently notorious, it will provide other opportunities for V to receive money--e.g., V can write a book (or have a book ghost-written for V), sell the movie rights, charge for interviews, get a job as a judge on a reality tv show, etc. So there are incentives for people to falsely claim that they have been the victims of serious crimes at the hands of the rich and famous.

Thus, I don't doubt that an occasional innocent person has served prison time as a result of a false accusation made by the accuser for financial gain. This is, of course, a tragedy when it happens, but I don't think it happens very often.  I would be very surprised if the scale of the problem of financially-motivated deliberately false accusations comes close to the problem of good-faith erroneous eyewitness identifications. So if we're looking for a general problem of unfairness to defendants in our criminal justice system, I don't think going after deliberately false accusations--whether financially motivated or otherwise--is the place to start.

Moreover, the idea that this is a general problem strikes me as reminiscent of old sexist attitudes towards victims of sexual assault. False accusations occasionally happen, but the criminal justice system has means of ferreting them out. In particular, the prospect of financial gain gives rise to a bias that the defense attorney may explore when cross-examining an accuser. There is no reason to think that women alleging sexual crimes are more likely to be making a false accusations than are the alleged victims in any other kind of case.

L'affaire de DSK has been noteworthy thus far in causing the French to rethink the treatment of women in the workplace and beyond. Whatever the truth in this particular case, it would be a shame if in the end it leads people in France or here in the U.S. to fall back upon old stereotypes.

Happy Independence Day!