DSK, Rape Accuser Both Deprived of 'Innocent Until Proven Guilty'

Rape is still prosecuted (or not prosecuted) according to an informal test of which person has greater personal character and standing in society.

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"Innocent until proven guilty" is an essential and cherished element of the U.S. criminal justice system. Former IMF chief and French politician Dominique Strauss-Kahn was arguably denied this proudly American right when he was indicted for sexual assault and attempted rape of a housekeeper at a fancy New York hotel. And now, his accuser is being subject to the same rush to judgment.

Strauss-Kahn was hauled away in handcuffs and put up in Rikers Island jail after being arraigned on the assault charges. The media—the New York media, in particular—loves a story like this, the idea of a privileged, highly-paid official being treated like a common criminal. It’s very tempting to revel in the comparisons of his pricey Sofitel suite with the less-comfortable accommodations at Rikers. In a way, it was a showcase of American equality under the law: the concept that everyone gets the same treatment, regardless of wealth or power. [Read Milligan: How the Media's Getting the Strauss-Kahn, Ensign Scandals Wrong]

Except that it’s not equal. Strauss-Kahn was humiliated in a Law and Order: SVU style "perp walk," a theatrical production that is in complete defiance of the right to the presumption of innocence. Law enforcement might not have bothered making such a scene with a lesser-known accused person, and the media, to be sure, would not have bothered to cover it—never mind to stake out the accused’s home after he was released on bail. The French were appalled; their laws bar the use of such photos of the merely accused. And while banning such photos raises serious First Amendment issue, the French have a point. The "perp walk" is more than prejudicial; it is a barbaric tradition.

But Strauss-Kahn may have caught a break, and it’s not because the evidence of a sexual assault is missing. It’s because the accuser has been exposed as a liar and a person of questionable character. [Check out a roundup of this month's best political cartoons.]

The woman, according to prosecutors, lied on her asylum application and has had shady contact with a drug dealer in prison. These are bad behaviors, but they do not mean she cannot be a victim of sexual assault or any other crime. Aside from some changes in her account of exactly where she went after the alleged attack, there is no evidence that she lied about the attack itself. Indeed, the defense has stipulated that sexual contact took place, saying that it was consensual. The prosecution says it has evidence of forced sexual contact, including vaginal bruising that is consistent with (but not definitely proof of) an assault. Perhaps it is difficult to believe that a man of Strauss-Kahn’s position would risk so much by forcing a housekeeper into sexual acts. It is equally baffling to many that she would walk into a hotel room and become so overwhelmed with desire at the sight of an older stranger that she would immediately want to engage in sex with him. Only the two people—the accused and the accuser—know what happened in that hotel room, and a trial, hopefully, would have unearthed the truth. But rape, unlike other crimes, is still prosecuted (or more often, not prosecuted) according to an informal test of who is the person of greater personal character and standing in society.

For women, this used to mean that if she had ever had consensual sex, she was suspect as a rape victim. While that standard has eased, there is still a sexist and antiquated view that when it comes to sex, women fall into two categories: victim or whore, or more broadly, a pure person who has been defiled versus someone who is too flawed to be further defiled. Strauss-Kahn, who is now accused by a French novelist of attempting to rape her years ago, may have his character questioned somewhat. But the hotel housekeeper who accused him of assault has bigger hurdles to clear, and they may be insurmountable because prosecutors—while believing she was indeed a victim of attempted rape—see her as having a credibility problem. It would be a terrible transgression of justice if Strauss-Kahn (or anyone) was wrongly convicted based on media frenzy over a powerful person accused of a common crime. And it would send a terrible message to the world about the U.S. criminal justice system. But to refuse justice to an alleged assault victim because she has unrelated character flaws sends an equally damaging message: that good women can be raped, but bad women have no defense.

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