Sunday, September 11, 2011

The Credibility Gap

DSK was acquitted because of the victim’s “credibility issues.” But a closer look reveals a deep-rooted problem in the American justice system.

He, a famous European economist and politician. She, an illiterate immigrant hotel worker. Forensic evidence says that a sexual encounter occurred, and by established timeframes could have lasted no more than nine minutes from beginning to end. Dominique Strauss-Kahn would have you believe that Nafissatou Diallo walked in to his hotel room, where he seduced her using his notorious “charm” and had a quickie with the maid before grabbing lunch with his daughter. Diallo, on the other hand, mustered the courage to stand up, and tell her side of the story to Newsweek in a July Twenty-Fifth front-page article.
She detailed her experience in a moving, at times nauseating account of that day, from the moment “a naked man with white hair suddenly appeared” to when she went with authorities to Rm. 2806 to show them where she had spit while fleeing Mr. Strauss-Kahn. They recovered some of her saliva from the carpet of the hotel room, and it contained the semen of Strauss-Kahn. Her coworkers found her distraught and inconsolable minutes after the alleged attack, and a security officer told her that if they were in her position, they would call the police.  
All of this evidence was cast aside in the highest-profile rape case perhaps since Roman Polanski in 1977. It became a case based on perceived “credibility.” Oddly enough, it was not the phony credibility of the attacker that was called into question, but that of the victim. Like so many other rape cases in this country, the victim was effectively put on trial while the perpetrator breathed easy. In truth, the D.A. Cyrus Vance and Asst. D.A. Joan Illuzzi-Orbon, who had never worked a Sex Crimes case before Diallo’s, realized that even though the victim was being honest about the attack, it would be a hard-fought case that might get a little ugly. The defense would attack her history relentlessly, making an inquisition out of the proceedings and focusing the jury on petty, false immigration statements and connection to sketchy characters. Going to trial was a risk they were not willing to take, a risk that could end up putting a black mark on their win/loss record forever.
This case could have been a landmark success for the American judicial system. It could have shown the world that American justice is one of true dedication to fact, law and fairness. Instead, it exposed a few things about our courts that many of us have ignored for years.
First, prosecutors and the media want rape victims to be pretty, white, rich, perfectly innocent girls, because those are the ones who are easy to argue for and who sell newspapers. The reality is that more often than not, female victims of rape are poor, minority, working people who have more at stake than most of us can imagine. The vast majority of rapes go entirely unreported, as entering the circus that is an American rape trial could literally destroy a victim’s livelihood. If we want to stop violent sex crimes, we must start giving rape victims the benefit of the doubt, and try to have a little empathy. Then move on to physical and circumstantial evidence to determine guilt or innocence.
Second, prosecutors are treated like starting pitchers, and that needs to change too. No rape case is as easy as win or lose. There is collateral damage all over the place, and a lawyer can lose a case and still be a good lawyer.      
Third, money still matters in American justice. After all, it was the head of the International Monetary Fund versus a low-level hotel employee, and the former had virtually unlimited resources with which to attack his victim again, only this time through lawyers and the media. This poor woman couldn’t get a fair shake in our courts, even in a high profile case that captured the entire world’s attention. Our Justice system is one where the playing field is supposed to be balanced, where a king and a bum would be respected equally. Instead, the court and the culture turned this case into a battle between rich and poor, white and black, man and woman. And once again, the rich white man has won.

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