It is a curious feature of American justice that Nafissatou Diallo, the accuser of Dominique Strauss-Kahn, has given an interview to ABC news, as well as to Newsweek. Thanks to media convention she had the right to anonymity in the US, as she would have had in the UK. She waived it: had that happened in the UK, however, it still would have been sub judice, whether she was anonymous or not, so to interview her would almost certainly have been contempt of court. It is therefore, from a British perspective, strange to see someone arguing their case publicly, before it’s been adjudicated.
The details that are supposed to have caused the case to collapse — firstly, her immigration status, secondly, her conversation with a drug dealer who may have been her boyfriend, thirdly, her changing the order of events after the attack — are sketchy. As Holly Dustin, manager of End Violence Against Women, said, “rape victims can have insecure immigration status … and they can still be raped”; I would think her asylum claim was as good as irrelevant. The alternative is to say that if you’re a migrant who fled an ambiguous situation, if you can get into another country, good luck with that — but you forfeit your rights under the rule of law.
The conversation she had in which she purportedly made compromising remarks to a drug dealer hasn’t been properly translated. And as for the order of events following the rape: she initially said she’d waited in a corridor to collect herself; it then transpired she’d gone into a room, DSK’s lawyers say to clean it, Diallo’s lawyers say to collect her stuff. But even if she did clean it, how can you possibly adjudicate on what an honest person would do in the minutes following a sexual attack?
One person’s word against another
Still, it’s understandable that with a crime in which it’s one person’s word against another, the credibility of the accuser takes on greater importance than it would otherwise. What is not understandable is the fact that Diallo’s credibility — which is undermined here by hints about her trustworthiness in a range of situations rather than any evidence about her sexual behaviour — comes under so much more scrutiny than Strauss-Kahn’s. Indeed, where people do mention the politician’s reported priapism, it is in his defence: he could have any woman he wanted, so why would he try to rape anybody?
There is, as we all know, a case being brought against him for the same offence by Tristane Banon, in France. And yet in some quarters that isn’t considered enough to dent his word, while Diallo’s word is wrecked, not just with an inconsistency, but even when her version of events deviates from what we might have expected.
I went to France shortly after DSK’s arrest, and many people were shocked that I would even dignify the accusation with a conversation. “En France, nous avons la présomption d’innocence,” they explained slowly, as if to a person from a country without courts. But presumption of innocence is only extended to the accused. The accuser surely deserves it as well, since a false claim of rape is also a crime. So the only thing to presume in a rape accusation is that you don’t yet know: yet it is taken as the respectable course to presume that the accused is still innocent.
Similarly, when a charge of sexual assault is made, everything the accuser says is picked over for inconsistency and improbability. This is an extreme example, but it’s a real question from someone I interviewed in Paris: “She claims he forced her to give him head, twice. But what does that even mean? Just sticking it in twice, or two full cycles of fellatio?” All the accused has to say is: “It was consensual.” Nobody says: “What exactly made her consent to sex with you? What was your killer move? Do you have a really good line, or do you just do it with your eyebrows?”
I don’t even think this is pure, unadulterated sexism, a more discreet version of sharia law, in which a man is just taken to be more trustworthy than a woman. There is a legal angle, where we all know that circumstantial evidence is not enough; that tittle-tattle won’t convict anyone; and that even past crimes of exactly the same, or a very similar nature, have to be excised from the process of adjudication, in the interests of fairness. A past crime from the accuser, however, even if it has nothing to do with the case in hand, is enough to torpedo their credibility. Anything could do for Diallo now: if she were found to have a speeding fine, or to have ever been a prostitute, or to be a pickpocket. Just imagine how minor an infraction would be enough to destroy any chance of her being taken seriously. And yet, for Strauss-Kahn, a tabula rasa.
There is a myth that the Strauss-Kahn affair highlights the differences between American/Anglo-Saxon puritanism (the possible 72-year sentence was fixed on as evidence of a tendency to overreact) and French “passion”. In fact, beyond a few technicalities about arrest procedure, there is less difference between them than they suppose: in the US, you might get a bit closer to a prosecution, but the rules are the same. To be a credible rape victim you need to be innocent beyond imagining, not to mention beautiful; to be a credible rapist, you have to be so vile, so rebarbative, that it would be impossible for you to get laid any other way.
Diallo said when she found out who DSK was she was frightened for her life: if it had happened in Guinea, with “a powerful man like that”, she would have been killed. In the brave Western way, nobody has to silence a complainant so crudely. Incredulity is enough. – guardian.co.uk