Assume that everything Nafissatou ("Nafi") Diallo alleges that Dominique Strauss-Kahn (DSK) did to her is true: that he rushed at her, grabbed her, tried to rape her, and forcibly compelled her to give him sex. And shortly after, she made a criminal complaint against him. For sure there are questions about the details of her story. She may have made inconsistent statements as to precisely what she did immediately after she fled. But there is no dispute that her complaint was prompt, her outcry graphic and emotional, and that physical evidence corroborates her account.
Assume further, and it appears to be the fact, that Diallo had a conversation the next day with a friend who was an inmate in an immigration prison, that the conversation was recorded by prison officials, and that during this conversation there was a reference to the fact that Strauss-Kahn is a wealthy man, and the suggestion that she could profit financially from the encounter. There appear to be differing interpretations of exactly what was said, and who raised the subject of DSK's ability to pay her big bucks. But assume that she was the one who first raised the subject, and further assume -- even though there is no proof to support it -- that she added: "He's a rich SOB and I'm going to bleed him for everything I can for what he did to me!" Unless a victim of a vicious and inhumane crime is independently wealthy, or wants only vengeance and significant punishment for her abuser, what law-abiding crime victim would not want to be compensated, and compensated heavily for such a brutal and humiliating attack?
Nevertheless, because Diallo on the day after the attack apparently was thinking about getting money from DSK has incited the tabloids and probably much of their readership appear to have concluded that Diallo is a liar and her claim of sexual abuse a fabrication. To be sure, there are other problems with Diallo's credibility -- she lied in her asylum application by claiming she was gang-raped in her former country, she appears to have a suspicious financial relationship with the inmate, and her story about what she did before she made her complaint against DSK changed. But it is her alleged quest for money that seems to most disturb and prejudice the media and the public against her. She's being pilloried for allegedly wanting DSK to pay her for what he allegedly did to her.
Most defendants who commit violent crimes can't afford a lawyer, bail, or investigators, and certainly do not have the ability compensate their victim. That is one of the significant differences between the Diallo-DSK case and most other cases involving violent crimes, and particularly sex crimes. DSK is clearly able to compensate his alleged victim, as were Michael Jackson and Kobe Bryant, who paid persons who claimed to be sexually abused by them very large sums of money. It is also probably true that the typical crime victim does not have a financial motive the day after the offense. They are in shock and physical distress. But when the trauma subsides, they may come to realize (perhaps with the assistance of a plaintiff's lawyer) that they should indeed seek a financial recovery from an offender who has so brutally violated them and who fortunately is in a position to pay compensation.
But prosecutors are understandably worried about a crime victim wanting money from the perpetrator. There seems to be an unwritten policy among prosecutors that victims and witnesses must never mention wanting money from the case. Prosecutors caution crime victims and their attorneys to wait until the criminal case is over before filing a tort lawsuit. Prosecutors don't want the victim to even talk about the possibility of a potential lawsuit.
Are prosecutors hiding the truth? Perhaps. Prosecutors want to create a narrative for juries that the crime victim seeks only justice against the wrongdoer and does not have a cash incentive in mind. Although the prosecutor does not ask the victim to lie or mislead, the prosecutor does ask the victim not to deliver to the defense lawyer on a silver platter the kind of ammunition that DSK's lawyers have been afforded already in the unlikely event that the DSK case does go to trial -- namely, that even if Diallo did not have a profit motive on the day of the alleged attack, she surely has one when she gets on the witness stand and testifies at a trial. Indeed, the subject of Diallo's wanting money from DSK probably consumed much of the discussion in June when, according to July 27's New York Times, Diallo's attorneys met with members of DSK's defense team to "explore settlement." Justice comes in different ways!
Criminal trials ideally are supposed to be about finding the truth about an historical event where the facts are unclear, ambiguous, and hotly contested. Defense lawyers should be allowed to go after the crime victim, including Diallo, with sharp and aggressive questions, especially about her possible financial motive. As those of us who have been in the courtroom arena can attest, successful impeachment of a witness often has nothing to do with the merits of the case; rather, it is often about the witness's overall character and credibility. There is nothing wrong with this. If a witness lies about some things, it is logical to infer that the witness may also be lying about the central and contested facts of the case. Cross-examination has been aptly described as the most powerful engine ever invented for discovering the truth.
So if Diallo lied to the prosecutors in denying that she planned to seek money from DSK, that lie, along with the other discrediting matters noted above, might cause her interrogators to conclude that she made up the alleged attack out of whole cloth. That's one possibility. On the other hand, if the prosecutors are simply angry that they're stuck with a "crime victim" who acknowledged, in an unguarded moment, that she saw a pot of gold when the criminal case was over, it is probably high time that the entire criminal justice system recognize and deal with the fact that financial recoveries in criminal cases are a fact of life, and should not be shrouded in secrecy and disingenuousness.
Although defense lawyers are free to refer to the victim's financial motive in challenging the truthfulness of her testimony, jurors should also use their own experience and common sense when assessing the victim's credibility, and the prosecutor's argument that crime victims have a right to be compensated for their pain and suffering should not be a reason for the jury to disbelieve them. There is nothing inconsistent, the prosecutor should explain to the jury, between a crime victim seeking justice in a criminal courtroom and seeking compensation in a civil arena. The jury should be told that the victim recognizes that she has a legal right to compensation for her pain, abuse, and embarrassment -- and that she intends to pursue her right to the fullest extent of the law.
Only two people know what happened in DSK's hotel room. If the District Attorney's office doesn't believe Diallo, they shouldn't prosecute the case. But if the prosecution believes that she was forcibly compelled to give Strauss-Kahn sex, and that a jury could overlook her credibility problems and decide beyond a reasonable doubt that she was violated by DSK, then the prosecutors should not abandon her. Indeed, it is ethically correct for prosecutors to proceed to trial even with a weak case, and even if they know they stand a decent chance of losing, if they believe it's the right thing to do. That's what a prosecutor's duty to justice really means, and prosecutors more than any other government officials are sworn to serve justice.
Joel Cohen practices criminal defense law at Stroock & Stroock & Lavan LLP in New York, and teaches Professional Responsibility at Fordham Law School. Bennett L. Gershman is a Professor of Law at Pace Law School and the author of Prosecutorial Misconduct (West 2d ed.)
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