By Michelle le Roux
A few things we all know: survivors of sexual assault should expect to have their sexual histories interrogated for evidence of promiscuity or provocative behaviour. So too the scrutiny of their personal circumstances to demonstrate unreliability, previous instances of “crying wolf” or lack of truthfulness. We’re told to ask these questions in order to ensure that justice is done, that innocent men are not convicted and guilty ones are. But how do we as a society deal with what might be awkward or complicated answers to these questions if we, or rather our proxies in the justice system, are to judge another’s conduct?
The New York District Attorney’s Office on Tuesday dropped the charges against former IMF chief and tipped French presidential contender Dominique Strauss-Kahn for his alleged sexual assault of Nafissatou Diallo, a 33-year-old immigrant from Guinea who worked as a hotel housekeeper.
The DA’s office explained this decision by saying that it had concerns about her veracity and credibility, and its ability to convince a jury to believe her account of events in DSK’s luxury suite in May beyond a reasonable doubt. Chief among these concerns was evidence that she may have lied on her application for asylum in the US about her gang rape in Guinea. (It seems that she did not lie about her genital mutilation while in that country.)
There are also telephone recordings of her discussing DSK’s wealth, which have been put into service as proof of an apparent shakedown strategy. (Her lawyer has disputed the translation of these recordings in which Diallo speaks a dialect of Fulani.)
Tellingly, it was Diallo herself who told the DA about potential credibility bombshells, apparently considering that full disclosure during the early stages of the investigation would prevent prosecutorial surprise later. Prosecutors have criticised her for blaming others when trying to explain the issues that came up regarding her tax returns, bank accounts and asylum application.
The desperation of a mother seeking asylum in the US or the attractive prospect of civil damages that could release Diallo from housekeeping duties are things that a jury of adults could probably deal with. But the way in which survivors of sexual assault are treated and portrayed seemingly cannot accommodate less than an untainted angel-complainant. Is it too much to ask a jury to believe that she is telling the truth about her assault as well as her desire to be compensated for it?
What do we know about the facts of this case? An extraordinary amount it seems. We know Diallo’s vagina was bruised during the encounter (there are photographs), her stockings were ripped (the DA has them) and that a ligament in her shoulder was torn in the struggle (according to MRI scans). We know that her saliva and his semen were found on the walls and carpet at the entrance to the suite where she spat it out. In short, we know that the sexual encounter between DSK and Diallo took place. He admits that. The only issue in dispute is whether it was consensual or not. And that is where the he-said-she-said credibility conflict comes in when there are no other witnesses to the alleged crime.
Which is why the DSK-Diallo case is so compelling. The usual asymmetry of only the male accused being subjected to public scrutiny of his past misdeeds was gone. Instead insults and stories were traded in the months after the incident. She was called a whore, he a “chaud lapin” (hot bunny). She was linked to incarcerated drug dealers, he was sued by a French journalist for attempted rape. She was said to have filed fraudulent tax returns, Air France was said to have been forced to staff his cabins with male flight attendants. All of which revealed the human complexity of the lives and choices of the people caught up in it. Surely that was something a jury of their peers could have gotten their heads around?
We know some of this because Diallo waived the anonymity usually accorded to survivors of sexual assault and spoke to the media in person and through her lawyers about the details of these events and about her life.
This choice is highly unusual; all the more so in a case that has consistently occupied front pages around the world. The identities of survivors of sexual assault are ordinarily kept secret and aspects of legal proceedings may be conducted behind closed doors. South Africans need only recall the treatment of President Jacob Zuma’s kanga-wearing rape accuser, who was known only as “Kwezi”, during the conduct of that high-profile trial.
Such protection is also afforded to children by the justice system. And this is perhaps where the problem starts. The infantilising exceptionalism afforded sexual crimes seems to undo the normal rules of probity. Let me explain. Adult women are the most frequent survivors of sexual assault. These women usually have a sexual history and may even have ambiguous sexual relationships or even transgressive sexual behaviour in their pasts.
It is exactly these sorts of tensions that motivated the recent Slutwalks. The choices women make about what to wear, who to flirt with, what to drink and who to have sex with add up to often contradictory evidence about their sexuality and morality. That’s called being a grown-up. It does not justify their sexual assault.
Such is the nature of sexual maturity and experience. But this makes for messy prosecution and ugly cross-examination. Far preferable would be a complainant whose sexual and personal history prompted no discussion at all. Such a woman would deliver a conviction beyond reasonable doubt without a doubt. But outside of a fantasy or a nunnery she doesn’t exist — probably. The system needs to understand that.
Michelle le Roux is a member of the Johannesburg and New York Bars and a visiting senior fellow at the Mandela Institute. She worked for Diallo’s attorneys, Thompson Wigdor, in New York between 2004 and 2007.
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