Crown prosecutors, as a general rule, do not drop high-profile cases for shits and giggles.
If an accused has been arraigned before a Grand Jury (common in the US), or the matter has sailed through committal proceedings (Australia and England) or satisfied the Examining Magistrate or Procurator Fiscal (Scotland and most of the Continent), then to abandon it is a wrench.
That is why, when it comes to l’affaire Strauss-Kahn, it is well worth reading the New York District Attorney’s motion to dismiss the indictment against the French economist and politician. At the moment, all the credit is going to Cyrus Vance Jr, which on one level is appropriate (the buck does stop with him), but that ignores the skill and thought of the two junior lawyers (Joan Illuzi-Orbon and John ‘Artie’ McConnell) who wrote the recommendation. The whole document is available here.
Because I, too, am a lawyer, and have had my time in the trial division, I did not comment on the charges against Dominique Strauss-Kahn. I followed the matter, however, and watched as DSK’s French skeletons came waltzing out of the cupboard at the same time as various French intellectuals invented a new dance for themselves: the foot-in-mouth dance, which involves leaping high into the air while simultaneously changing feet. A rather nice collection of French foot-in-mouth-itis is available here: it’s in French, but easy French. If you have a French O-Level, persist. It’s very funny, and very… French.
Now that the charges have been dropped, it seems a good time to make a few observations. First, I want to clarify a few legal misconceptions that have been widely reported around the place; these concern–for the most part–the DA’s motion. Next, I’ll offer some personal observations — make of them what you will. Finally, I’ll discuss a few of the differences between the French and American legal systems, pointing out where both systems have their strengths and weaknesses.
The motion to dismiss
The reason that the NY DA filed a motion to dismiss in the DSK matter was because the prosecutors could not believe the witness in the instant case. Their inability to credit the witness placed them in a position where, had the matter proceeded to trial, they would have been trying to convince a jury to believe beyond reasonable doubt a witness they themselves did not believe beyond reasonable doubt. This is a no-no in both common law and Roman law systems, and is tied to the rule of law principle that it is better to let N guilty persons go free than to convict a single innocent person. I use the statistical symbol N advisedly: there is a wide gap between legal systems and traditions when it comes to defining N, as Alexander Volokh points out in this excellent and witty piece. Those Laura Norder loving Romans were only willing to put up with a one-for-one trade, for example, while Blackstone (the great common lawyer) would wear 10, and Benjamin Franklin 100.
It was Robert Nozick – in Anarchy, State and Utopia – who observed that any criminal justice system unwilling to confine N would be one that had no system of punishment at all. This bespeaks a tradeoff, a balancing act, and the impossibility of perfection. It recognises, too, that every time a guilty person is acquitted the law, in a sense, has failed the community it exists to serve.
This means that the motion to dismiss (pace large chunks of the French press) does not mean that DSK is innocent (no legal system presumes to make that claim, even after a ‘not guilty’ verdict) and does not mean that the crime did not take place. What it does mean is that the complainant is a liar. She is a liar in so many particulars that, even if she were telling the truth in this instance, no reasonable jury would convict.
Nafissatou Diallo lead the New York DA’s office a merry dance, telling prosecutors multiple versions of not only the DSK allegation (this is seen as more excusable in all developed legal systems, as people under stress are given leeway when recounting their version of an alleged crime) but of just about everything else as well. It has been widely reported, for example, that she lied about a gang rape in her asylum application to the US, but this is not actually the case. It is worse than that. She told prosecutors a vivid and wholly believable story of a gang-rape in her home country because she wanted to tell them a vivid and wholly believable story of a gang-rape in her home country. It did not appear on her asylum claim. At one point she rolled around on the floor and wailed. On another occasion she contradicted what she had said only a few days previously to the same group of prosecutors, trying to deny that she had ever made the statements in question.
What made her situation worse is that she had lied under oath, before the Grand Jury, and elsewhere under penalty of perjury. Most people tell lies from time to time. Relatively few people tell lies in court. The rules of evidence vary across jurisdictions as to the admissibility of a witness’s prior convictions or past conduct (as distinct from the accused’s), but very generally, prior convictions can usually be lead against a witness, particularly where offences of dishonesty are involved. The motion to dismiss makes it clear that this is the case in New York. This, I should add, is completely separate from questioning a rape complainant about their sexual history, a noxious practice that has been abolished throughout the common law world and (to the extent that it is not influenced by Canon law) was never a part of Roman law.
If you take the time to read the motion to dismiss, the two assistant DAs’ irritation at having a case collapse beneath them is palpable. The document is extraordinarily fair.
A personal observation
It is often argued — with some justification — that women with promiscuous sexual histories struggle to sustain a rape allegation through to conviction, even after reforms preventing cross-examination on sexual history. However, this observation is not entirely true. Women with promiscuous sexual histories from poor or immigrant backgrounds struggle to sustain a rape allegation through to conviction; middle- and upper- class women do not.
There is a temptation to see in this some sort of conspiracy, but there is no conspiracy. Middle-class people are better able to navigate the legal system, full stop. This ranges from having more money to hire better lawyers in civil matters to better courtroom presentation in both civil and criminal matters. Any lawyer who reads this blog will know what I mean when I use the phrase ‘impressive witness’. Some people are just ‘impressive witnesses’. They look judges, jurors and counsel in the eye when they speak. They show distress when one expects them to show distress. They trust the police and tell the truth. They behave respectfully towards both police and court officials. They show deference. They also tend not to have been placed in situations where they have had to lie: on anything from benefits claims (Diallo was a benefits cheat) to asylum applications. Middle-class rape complainants (regardless of their sexual history) present professionally and neatly in court.
I am not saying that this situation is right, just that it is, and attempts to remediate it must be handled with care. There is a great deal to be said for open justice and oral examination. People who criticise it do so at their peril, because we do know that developed Western legal systems are not only right more often than not, but are right nearly always: which is why when they fail, we are so disappointed and angry. We in the West have been spoiled, for long periods of our history, with justice systems that work almost all of the time: Ulpian once suggested that, in law, 95% was a good goal, because it recognised the impossibility of perfection but meant that citizens trusted the courts to be just. The same statistic is exhaustively documented (for the US) by modern jurisprude Richard Epstein.
For this reason, I submit that DSK is in far graver danger from the rape allegation Tristane Banon has made against him: she is French, middle-class, cultured and has a well-documented history. Normally ‘fresh complaint‘ is very helpful to a rape complainant, but Banon has so many other things going for her that the eight-year lapse may well prove immaterial, especially as her mother is prepared to testify that she advised her daughter not to proceed soon after the alleged incident occurred. It is for this reason, I suspect, that the French Socialists (and French people generally) are treating DSK rather coolly: they have an instinctive awareness that Banon’s case may be a strong one.
Two countries confused by a different legal system (not just a different language)
I have written elsewhere on the differences between Roman law and common law legal systems. I should perhaps point out here that France is the sine qua non of Roman law, while the US — with its extensive constitutional protections — is in some respects more ‘common law’ than the English common law that spawned it. Every significant difference between the two systems was on display in the DSK matter. The common law commitment to open, public justice, right down to the ‘perp walk’, which so horrified the French; the widespread French belief (derived from the Roman jurists) that public figures of talent and ability should be given more leeway than those lower down the social scale; the power of Roman derived laws against invasion of privacy, the common law belief that Jack’s word is not only as good, but likely better, than his master’s.
Once again, there was some confused and confusing reportage, the worst of which I’ll dispel here.
Many US commentators were distressed that the French media named the complainant and, after some initial shyness, not only named her but began to mine her background and comment on her appearance. For their part, the French were distressed that DSK — clearly tired and afraid — was paraded in shackles, pilloried in public and sent off to Rikers. This is a simple case of cultural confusion. In France, both the rape complainant and her alleged attacker enjoy anonymity before trial. The preliminary investigation is undertaken by a special ‘examining magistrate’ who then (if he or she is satisfied with the brief of evidence) hands the file over to the prosecutor. At the same time, the complainant can retain (at the State’s expense) a lawyer to protect her interests, entirely separate from the prosecutor; the latter manages the state’s interest in the punishment of violent crime.
For the French media, it was a case of turn and turn about is fair play: if the Americans were going to disclose anything and everything about the accused, then they felt they could go digging about the witness. This is most unusual in France, in part thanks to the country’s privacy laws. However, once a few papers began running pictures of DSK in shackles, it turned into something of a free-for-all on both sides, with a level of disclosure about all parties that many French people found enormously titillating, simply because it so rare:
DSK’s reputation has also taken a battering from the French press, as newspapers, perhaps ashamed of having ignored his personal life for so long, came up with a series of uncharacteristic revelations. Le Monde subscribers spluttered into their espressos in June when they read a full-page story that included the name of the swingers’ club where DSK was an habitué, or excerpts from a police report on his being caught with a prostitute in a parked car in the Bois de Boulogne in 2007. The French have a strong stomach, but this may have tested it too far.
Not a few French media outlets commented that France was having its first ‘scandale l’anglo-saxisme’, and there were earnest attempts to tell the stories of Profumo and Clinton to a bemused French public. In an amusing piece that appeared in this weekend’s Financial Times (no link; paywalled, p 11), Christopher Caldwell recounts his discussion of the Monica Lewinsky affair with a French cabbie:
I tried to explain that the US president was being pursued not for sexual immorality but for abusing power and lying under oath. Mr Clinton should not be impeached, I said, but, still, ‘he has acted like a … a … what is the word I’m looking for in French?’
‘Un homme?’ the cab driver suggested helpfully.
It is tempting, in light of these attitudes, to write the French and their legal system off as irreducibly sexist, but that would be a mistake. Like most Roman law countries, France has higher conviction rates and lower attrition rates for sexual offences than comparably developed common law countries. Let me explain.
The attrition rate refers to the number of rape allegations that make it all the way through from initial presentation at a police station to conviction. In the UK, the attrition rate hovers between 6 and 10%. That means that roughly 90% of the rape complaints made to the police do not result in a conviction. In France, by contrast, the attrition rate is 32%, meaning that roughly 70% of rape complaints made to the Gendarmerie or Sûreté do not result in a conviction.
The same process obtains again when it comes to conviction rates; this refers to the number of convictions secured once the Crown/State/People brings a prosecution. In England, the figure is 58%, while all developed Roman law countries enjoy conviction rates of over 90%. Japan, as I’ve mentioned before, is the highest (98%), but in some respects that is because the Japanese legal system is the most ‘Roman’ of all civilian systems, right down to fairly routine police brutality and even allegations of prosecutors tampering with evidence. The trade-off between Roman style ‘Laura Norder’ and common law ‘justice for the accused’ is outlined in fascinating detail in this report on the Japanese legal system, prepared by the International Bar Association.
There are also substantive differences between the Roman law and the common law on rape. If you take a look at the French penal code (downloadable here), particularly Articles 222-223, you will see that in France, the woman need only prove that she did not consent. The man’s belief as to whether she did or did not consent is irrelevant. In common law systems, he (typically) must also have a belief that she did consent, and this belief must be unreasonable. In some earlier versions of the law, the quality of his belief did not matter; it was sufficient that he believed honestly in the woman’s consent. The vast gulf between the ancient Romans (and this difference goes back to antiquity) and the English common lawyers was noted by the great English jurist Blackstone (in 1765), who thought it a mark of English civilisation that the common law cast some of the blame on the woman, in a tortious apportionment of liability:
[Women] whom the Roman laws suppose never to go astray, without the seduction and arts of the other sex: and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the women […] But our English law does not entertain quite such sublime ideas of the honour of either sex, as to lay the blame of a mutual fault upon one of the transgressors only.
I think it is fair to say that it is modernity’s exposure to feminism that sees us agree with the Roman jurists, and disagree with Blackstone.
Two things fall out of this: while the French system may seem too solicitous of the feelings and failings of the Great and the Good, rape is easier to prove there, and the process is less traumatic for the complainant (no cross-examination, for a start). It is particularly helpful in the case of a passed-out complainant: the absence of what a common lawyer would consider mens rea means that any any sexual contact with someone who is unable to respond will be viewed very harshly. That said, it is likely that, if repeated in France, the New York DA’s case against DSK would also collapse, and for the same reason: Roman lawyers, like common lawyers, need a witness they can credit.
Nuls points, then, because lawyers in any decent legal system must deal with the world as it is, not as they (or anyone else, for that matter) want it to be.