In the aftermath of the furious coverage of the revelations about the accuser in the Dominique Strauss-Kahn case, I have a question. I have read a lot of feminists and women who are very upset about the disclosures about the victim and the ensuing media coverage. But what I haven’t figured out is who, exactly, has done something wrong except the person who leaked the prosecutor’s letter to the press and wasn’t supposed to.
Here’s the thing: it’s unfortunate. It’s unfortunate that the woman who likely was raped by DSK is now having her name and character and everything she’s ever done dragged through the mud. It sucks. It makes me feel sort of ill that this is what she’s going through.
But what do you propose as an alternative (besides, of course, this information not having been leaked to the press?)
Let’s start at the beginning. Let’s start at the first step in this process. The first step is that the police and prosecutors investigated this woman’s background as thoroughly as they did. The question of how deeply they are obligated to investigate witnesses will be litigated until the end of time. But in general, I want to live in a world where police and prosecutors vigorously investigate whether witnesses are telling the truth, and all the things that could potentially bear on whether that witness is telling the truth. This is for two reasons. The first is that I want them to investigate those matters in service of exercising prosecutorial judgment about which cases to bring. The second is that the police and the prosecutors are uniquely positioned to uncover potentially exonerating information, and when they do uncover it, they’re required to turn it over to the defense. It it much harder for defense attorneys, who don’t have the long arm of the state at their disposal, to gather information on witnesses, about the crime scene, and to collect evidence.
The second step is that they turned over the information they uncovered to the defense. As a defense lawyer, I’m really impressed with their “Brady disclosure.” For non-lawyers (or really, non criminal defense lawyers; I didn’t learn this stuff until recently), a Brady disclosure is anything that the prosecutors uncover that could potentially be favorable to the defense. There’s a lot of litigation about this, but for something to be Brady material, it doesn’t have to be admissible as evidence, it doesn’t have to be a slam dunk, it doesn’t have to show that the accused is innocent. It could be something as simple as the statement of a witness who told the police that he thought the perpetator was dark-skinned when a police report describes the defendant as medium-complected. It could be that one of the witnesses was fired from his job 5 years ago for falsifying TPS reports. Which, again, doesn’t even sound like it’s related to the case. But it’s Brady material, because it bears, however marginally, on the credibility of a witness.
The third step is leaking that information to the press. Now, that’s bad form. Really bad. I honestly don’t know if it’s unethical. I really don’t know what duty prosecutors have to keep that kind of information confidential, or if they even have such a duty at all. I am happy to be educated. I think the usual practice is to keep things confidential while the investigation is ongoing, so as not to prejudice the case in the public eye. But the truth is that prosecutors and police try their cases in public all the time. I certainly don’t think there would have been anything wrong with DSK’s team publicizing the Brady information they got (I’m happy to be corrected on this). I don’t think it would have been wise strategically, but that’s not the same thing as it being wrong.
The fourth step is now, the DA’s office has to determine whether it wants to go forward with the case in light of this information. This is, I think, where potential problems arise. It’s well-established that prosecutors are far more willing to disbelieve complainants in rape cases than they are in other criminal cases. They fail to bring cases because they don’t believe the victim, and, because of rape culture, are likely to believe the accused’s version of events. They are invested in living in a world where men aren’t held accountable for rape because that world is a patriarchy that benefits men. But I don’t think this case is an example of that tendency. First of all, they haven’t actually dropped the charges. Second of all, I don’t think it is true that this information is the kind of minimal inconsistency for which dropping the charges would be unjustified. She admitted to committing perjury, people. That’s no small thing. I’m not saying it means she wasn’t raped. Of course it doesn’t mean that. For my money, I’m guessing he did, in fact, rape her. But it does mean that when you are putting a witness on the stand, saying, you have to believe what this witness is saying in order to convict this man, and then the defense lawyers get up on cross and make her admit that she’s committed perjury before? That’s bad. It’s not necessarily fatal to the case, but it certainly could be. It’s not good.
The fifth step is that if this case does go to trial, that the defense team will use all this information relentessly to eviscerate the victim’s credibility and try to decimate the prosecution’s case. This is, I suspect, what those who talk about rape culture in the criminal justice system really have a problem with. It’s brutal. It’s extremely unpleasant for the victim. It is, I am certain of it, a second violation of a person’s personal sovereignty and their sense of humanity.
But here’s where we come to an impasse. What do you suggest? I mean this honestly. Are you suggesting that this kind of inquiry not be permitted in rape cases? Because in order to do that, you would have to rewrite the laws of evidence. The fact is that previous lies do weigh on witnesses’ credibility. They just do. Just because someone has lied before doesn’t automatically mean they’re lying now. But it’s relevant. It is. No matter how many times you say that victims don’t have to be perfect, you can’t change the fact that in a rape case, a victim is not just a victim. A victim is a witness. And credibility of witnesses is relevant at trial. Are you going to suggest that defendants not have the right to call into question every witness’ credibility with whatever means they have available? Are you going to suggest that victims not have to testify at these trials? (You’d have to rewrite the Constitution for that one—confrontation clause gives you the right to confront your witnesses). Once they are testifying, once they are up there on the stand, everything is fair game. It just is. Everything that bears on credibility.
I really would like to know what it is that everyone who is up in arms about this case would suggest be changed about the way criminal trials are conducted in rape cases that you think would solve this problem. Just because it sucks, doesn’t mean it’s wrong. It arises from the constitutional rights that all people who are accused of crimes have. It arises from the right to liberty, liberty the state can’t deprive you of without a really good reason. You are talking about locking someone up in a prison for years. Don’t you think the government should have some high hurdles to clear before they can do that to a person?
We come to step five. Step five is, what does the jury do with this information? The fear is that if the defense team dirties up the witness with all of this potentially damning information, that the jury will acquit. As everyone knows, the standard for conviction in a criminal case is “beyond a reasonable doubt.” According to the Supreme Court, it’s a requirement of due process that the government be held to that standard, and it’s a standard that’s been around for a long time. Can you honestly say that knowing that a witness had perjured herself and repeatedly lied to prosecutors wouldn’t give you a reason to doubt whether she was telling the truth about being raped? I can’t. It’s not a slam dunk. It doesn’t mean that she’s lying. But it provokes a doubt. I think it should provoke a doubt.
Once again, I’m not saying she’s lying about being raped. I think she probably isn’t. But that’s my gut, that’s my instinct, that’s based on being a rape survivor and knowing how tough it is to accuse someone (I never did). But if I were on that jury, I can’t say for sure that I wouldn’t have any doubt about whether she was telling the truth. And that’s simply the world we live in, in the criminal justice system. The standard for conviction is high. It should be high.
Maybe you say that the reasonable doubt standard shouldn’t apply in rape cases. But in order to do that, you are going to have to amend the constitution, because centuries of constitutional interpretation say that beyond a reasonable doubt is the standard in criminal cases, and if you just pass a law changing that, it’s going to get overturned. I’m not saying it’s a horrible idea. But if you are going to criticize juries for acquitting accused rapists in cases where you weren’t a juror and you didn’t hear the evidence, but you nevertheless feel comfortable saying conviction was the right result, I want you to be forthright and admit that what you believe is that the standard of proof is too high in rape cases and it should be something else besides beyond a reasonable doubt. That’s okay. That’s a fine position to have (I have some skepticism about the usefulness of the reasonable doubt standard in general, and so do some other people). But you can’t have it both ways. You can’t say that you subscribe to the current structure of presumption of innocence, right to a vigorous defense, guilt must be proven beyond a reasonable doubt and then simultaneously criticize every jury acquittal as being tantamount to jury nullification of rape laws.
Maybe you say that juries are too biased against rape victims and too steeped in rape culture, and deciding rape cases should be left to professional fact-finders, judges, who are less likely to be swayed by evidence that the complaining witness is less than perfect. You will get more convictions that way. You could say that in rape cases, the trials should be bench trials. That’s a fine position to have, although I don’t agree. But once again, you’re going to have to amend the constitution for that one. Right to a jury trial’s right in there, no case law needed.
It is clear to me that the feminist movement, specifically online feminism, is locked in a tug-of-war between the liberal ideals of robust civil and constitutional rights and the retributive desire to punish rapists. We want to say yes, everyone has these civil rights, everyone has a right to a defense, a trial, the presumption of innocence, the vigor of confrontation. But we also want to say, how in the hell do these people keep getting away with it? We want it to be easier to convict. Right?
Here’s the thing. We already live in a society where it is incredibly easy to convict people. The United States has the highest per-capita incarceration rate of any country in the world. We have more prisoners in absolute numbers than anyone else, too. The United States has 5% of the world’s total population and 23% of the world’s total prison and jail populations. Maybe, despite all this, you think that we should pass laws, change the rules of evidence, or amend the constitution so that it is easier to convict accused rapists. But acknowledge that that’s what you want.
We need to move this discussion forward. I am tired of this dialogue. Every time there is a high-profile rape case, it’s the same conversation. Feminists are outraged at the possibility that the accused could be acquitted. Rape apologists take to the internet and the pages of newspapers talking about what a lying slut the accuser is. When it’s a conviction, we’re happy. When it’s an acquittal, we’re angry and convinced that someone besides the accused/s themselves has done something seriously wrong, whether it’s the judge, the prosecutors, the defense lawyers or the jury. Assange. The New York cops who raped the drunk woman. DSK.
What is it that we suggest? How do we fix this? I guarantee you more convictions is not the answer. We need people to stop raping. Punishing some of the ones who rape isn’t going to make it stop. Locking them up isn’t going to make others not do it. The punishment for rape would have to be so swift and so certain that our society, and our system of justice would be transformed into one that, seriously? You wouldn’t want to live in.
Think about it. What do you really want?