What’s His Defense?

Whether it’s a Kennedy cousin, a professional athlete, or the head of the International Monetary Fund, it’s always shocking when a wealthy celebrity is charged with rape. Could that man in the suit really have been that beast in the bedroom? Why would a millionaire risk trading his life of champagne and yachts for three hots and a cot? What will his defense be?

 By now you’ve seen the footage of the head of the IMF, Dominique Strauss-Kahn, being led on a perp-walk by the NYPD. Until then, DSK was the French politician most likely to challenge Nicolas Sarkozy and become France’s next president. His reputation as a womanizer had also earned him the nickname of the “Great Seducer.” On May 18th, he was charged with sexually assaulting a maid at a posh Manhattan hotel, where he was staying in a $3000-a-night suite. According to news reports, the maid went into DSK’s suite to clean it; he allegedly emerged naked from the bathroom, grabbed her, forced her to perform oral sex on him, and tried to further assault her; she escaped, ran from the room, and reported the incident to her supervisor.

Since his arrest, we’ve heard a couple of different theories of his possible defense. 

He’s got an alibi:   DSK had checked out of the hotel and/or was lunching with his daughter when the alleged crime occurred, so he couldn’t have raped the maid. Gee, what a terrible mix-up this all must be.

The Vast Global Conspiracy: Sarkozy’s cronies set up DSK to eliminate him as a political rival. Dan Brown, start taking notes!

I doubt he’ll go with either of these two defenses. I was a federal prosecutor in D.C. for twelve years, specializing in sex crimes for the last eight. I’ve seen countless sex-assault cases, although admittedly few involving French diplomats. But this isn’t how such a case is typically defended.

An alibi defense is simply too risky (unless, of course, it’s true!). With credit card receipts, ever-present security cameras, and GPS cell phones, there are too many ways authorities can disprove a false alibi. And advancing an alibi squanders one of the great advantages a defendant has at trial – the prosecutor’s heavy burden of proof. Sure, technically the prosecutor still has to prove her case beyond a reasonable doubt, even if she can poke holes in the defendant’s alibi, but in practice the jury is likely to think they’re picking between two theories. If the defendant’s alibi is wrong, the prosecutor’s theory must be right.

As for the conspiracy theory – I’m a thriller-writer, but it’s too far-fetched for me. New Yorkers are a skeptical bunch. I don’t think they’ll buy a story where French politicians use the NYPD to carry out a grand conspiracy. If this were a set-up, it’s a risky one. Could the maid hold up under the spotlight that all the media in the free world is about to shine on her – not to mention cross-examination by experienced defense attorney Benjamin Brafman? Michael Corleone did it much better with the dead girl in the Senator’s hotel bed.

 Instead, I predict Strauss-Kahn will go with the usual defense that powerful men opt for:

Consent.

This has been the defense of choice since there have been sex scandals. It’s powerful because it often could be true – whether an alleged victim consented can be a blurry concept, and mistakes can be made. As a strategic choice, a consent defense also takes advantage of two enormous challenges prosecutors face: (1) rape usually happens with no witnesses, aside from an often vulnerable victim, and (2) the government has the burden of proving every criminal case beyond a reasonable doubt, the highest standard in American law. This defense also plays into the biases and prejudices in our culture. Someone on the jury might see a woman who had sex with a wealthy man, and think she must have wanted it.

These days, DNA testing often proves that the sexual contact took place. That leaves a defendant unable to claim – for long – that he never had sexual relations with that woman. But who is to say that she didn’t consent – except, of course, for her? The consent defense sets up a he-said / she-said situation, which is difficult to overcome by a beyond-a-reasonable-doubt standard.

Not impossible to overcome, of course. Forensic evidence such as vaginal tearing might demonstrate that the sex was forcible. But that kind of evidence is quite rare, and it seems even less likely to exist here, where there may have only been oral contact. Prosecutors will look for other injuries on the maid and DSK consistent with a struggle. They’ll also search for any other corroborating evidence. Did she immediately call the police or family after the alleged assault? Did he flee the scene? Did anyone else see or hear anything during the encounter? Has he done this before? In the absence of such corroboration, a lot will ride on the victim’s sheer credibility – a heavy burden for any woman to carry.

Meanwhile, the defense team has no obligation to state DSK’s defense until after the results of the DNA testing come back. In fact, they don’t have to say anything until trial – or even during trial. Every defendant has the right to sit back and simply hold the prosecution to its burden. But if history is any guide, DSK’s attorneys will say this was just another case of the Great Seducer wielding his famous charm on a willing woman.

The prosecution will continue to work the case from every angle, searching for any evidence that goes to this question. The men and women of the NYPD and the Manhattan DA’s Office are excellent law enforcement authorities. If they believe the charges cannot be proved, they will dismiss them.

And if this really turns out to be a vast global conspiracy, it will launch a new generation of political thrillers.

 Allison Leotta is the author of the legal thriller, “Law of Attraction.”  She was an Assistant U.S. Attorney in Washington D.C. for eight years, and a trial attorney with the U.S. Department of Justice for three.  All views expressed here are hers alone and do not necessarily represent the views of the Department of Justice.