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07.01.11

The Trouble With Rape Prosecutions

There are important ideas to be gleaned from the wreckage of 'People v. DSK.' Alan Dershowitz on reasonable doubt, the presumption of innocence, perp walks, and singing indictments.

There are a lot of lessons in the Dominique Strauss-Khan case about how rape investigations and prosecutions should be conducted. The most important is, don’t assume anything until all the evidence is in. The story is almost never what it appears to be on first impression. Everyone should have anticipated the possibility that evidence would emerge suggesting that a) the alleged victim might be in it for the money, and b) she might have her share of skeletons in the closet.

Despite that big oversight, the prosecutor did the right thing at first: he waited to get the forensic evidence before he brought charges against Strauss-Kahn based on the hotel housekeeper’s account of her alleged rape. But then the prosecutor messed up in speaking to the press, publically vouching for the truth of the woman’s account and for her character. Not that the defense team didn’t make mistakes of their own—they should have conducted a thorough investigation before suggesting that Strauss-Khan had an alibi because he had lunch with his daughter.

But prosecutors of sex cases need to do some major housecleaning—not only in District Attorney Cyrus Vance’s office in Manhattan but also in prosecutors’ offices all across the country. Special sex prosecutors and special rape prosecutors are often agenda driven. Too often they believe they’re on a mission and treat the alleged victim in a way that’s different from how they handle any other crime. They’re zealots; I call them Nancy Grace prosecutors. She behaves on her TV talk show as if there’s no such thing as innocence; everybody arrested is guilty. I believe there’s been a Nancy Grace aspect to this case. The prosecution presented its case in public as if there were no doubt about the alleged victim’s credibility or the complete guilt of the alleged offender.

In fact, one very important implication of the Strauss-Kahn case was this: the press is dead wrong not to publish the names of alleged rape victims. It is absolutely critical that rape be treated like any other crime of violence, that the names of the alleged victims be published along with the names of the alleged perpetrators, so that people who know the victim or know her reputation can come forward to provide relevant information. The whole manner in which this case was handled undercuts the presumption of innocence, and the same goes for many other cases like it. By withholding the name of the alleged victim while publishing perp photos of the alleged assailant, the press conveys a presumption of guilt. The next time I have to defend a case where there’s any chance of a perp walk, I’m going to federal court to demand an injunction against it.

In general the Strauss-Kahn case reflects well on Vance’s office. They did the right thing by conducting a vigorous investigation – and then disclosing the results. I’ve been involved in too many cases where investigations produced similar information and the prosecution sat on it or buried it. So, two cheers for Cy Vance’s office. Just two cheers. They shouldn’t have presumed him guilty from the beginning. A good professional prosecutor never tries his or her case in the press. Rudy Giuliani specialized in doing that, and he got burned on several occasions. And then he became mayor, which sent a message across the country that prosecutors benefit by perp walks and what I call “singing indictments.” That’s an indictment so florid and with so many details that you don’t even have to give a press conference, you just hand the thing out like a press release. It’s written in journalese, not legalese. Like Giuliani’s indictments – I’ve heard he used to run the text of some high-profile indictments past his press people before issuing them.

“I call them Nancy Grace prosecutors. She behaves on her TV talk show as if there’s no such thing as innocence; everybody arrested is guilty. I believe there’s been a Nancy Grace aspect to this case.”

I knew it was all over as soon as Strauss-Kahn’s lawyers refused to comment on the latest revelations about his accuser’s background. It’s clear they believe they have it won, and they can only make things worse if they speak up. It’s even possible that the prosecutors implicitly offered them a deal—“We’ll drop the case if you don’t badmouth us.” I know these two defense attorneys, and they’re usually very active in presenting their case in the court of public opinion. But a good lawyer knows how to shut up when he’s won his case.