Strauss-Kahn may attempt a consensual sex defenseJames A. Cohen in News & Insight, May 18, 2011
NEW YORK, May 18 (Reuters) - It was fewer than a dozen words uttered in the midst of a lengthy statement. Yet the remark from Dominique Strauss-Kahn's lawyer on Monday may speak volumes about the defense he plans to employ should the case reach trial.
"The forensic evidence, we believe, are not consistent with forcible encounter," Benjamin Brafman told Criminal Court Judge Melissa Jackson in the course of arguing that his client should receive bail on charges of attempted rape and sexual assault.
Brafman gave no details and made no other mention of this evidence, and defense lawyers warned that it may be too soon to try to read the tea leaves based on Brafman's brief words.
Nevertheless, his words have sparked widespread speculation that the International Monetary Fund chief will argue that any sexual encounter between him and a chambermaid on May 14 at a New York hotel was consensual.
And based on the few details known from initial reports, defense lawyers said the case against Strauss-Kahn appears far from a slam dunk.
"There's a lot of evidence that someone was upset," said Daniel Arshack, an attorney at Arshack, Hajek & Lehrman in New York. "But there's very little evidence that a crime actually occurred.
The first element of the prosecution's case would be to establish that a sexual encounter occurred in the hotel room. Even the presence of semen in the room would not necessarily be enough, Arshack said. "It doesn't necessarily mean that there was any sex between these two people."
Assuming the prosecution can prove that some kind of sexual incident took place, defense experts said, Strauss-Kahn could then employ a consensual sex defense, claiming the housekeeper was not forced to engage in any sex against her will.
A QUESTION OF CREDIBILITY
Under New York law, "forcible compulsion" occurs when someone employs the "use of physical force" or "a threat, express or implied, which places a person in fear of immediate death or physical injury" or kidnapping.
If no compelling physical evidence exists, such as bruises, cuts or other injuries, a consensual sex defense would turn on the alleged victim's credibility as a witness, and on that of Strauss-Kahn, if he chose to testify.
"Nobody except for Mr. Strauss-Kahn and the woman who has not been named knows what happened or didn't happen in that room," said Richard Willstatter of Green & Willstatter, the president-elect of the New York State Association of Criminal Defense Lawyers. "Prosecutors like to say they know what happened. But they really don't know what happened."
New York's rape shield law protects alleged rape victims from certain avenues of cross examination, including questions about their sexual history or sexual conduct, except in rare cases or at the judge's discretion.
Any evidence that the woman in the Strauss-Kahn case has a history of lying, however, would be fair game, and experts said his defense team will examine her background closely.
"Since the likely scenario in this case is going to be one of credibility, whatever evidence there is that casts a shadow on the complaining witness' credibility casts an equally long shadow on the prosecutor's ability to try the case," Arshack said.
Joseph Hayden of Walder Hayden & Brogan in Roseland, New Jersey, whose clients have included former Hoboken Mayor Peter Cammarano and former New Jersey Net Jayson Williams, said a defense attorney would explore what, if any, motivation an alleged victim would have to fabricate the report.
"You'd want to know about her emotional background, her stability, her financial situation, whether or not she has a prior history of litigation against people," Hayden said. "I'm not a believer in trashing people in public unless there is a basis for it, but you certainly explore everything."
POTENTIAL CIVIL CASE
David Ratner, a civil litigator at Morelli Ratner in New York, said the defense could also argue that the woman is seeking a payout from a potential civil case. "They're taking her story of being this hardworking immigrant trying to make it in America and turning it around and trying to make her seem to be a hustler," he said.
At the same time, the defense could try to emphasize Strauss-Kahn's own character, arguing he was not the sort to commit sexual assault, said Todd Berger, who teaches criminal law at Rutgers School of Law at Camden.
Or his lawyers could point to Strauss-Kahn's troubled history with women -- among other reports, a French journalist accused him of trying to force himself upon her in 2002, and his affairs have long been considered an open secret in France -- as evidence that he suffers from mental illness, said James Cohen, a professor at Fordham University School of Law.
Of course, the case may never come to a trial. While the dynamics of each case are unique, Arshack pointed out that only one of every 200 criminal cases in New York City ever goes to trial.
But Kim Taylor-Thomson, a professor of criminal law at New York University School of Law, said Strauss-Khan's political aspirations make it less likely that he would accept a plea bargain.
"He is probably not someone who would be willing to take a plea offer, given that he is concerned about clearing his name," said Taylor-Thomson, who formerly ran the Public Defender Service of Washington, D.C.