Tag Archives: trial

The DSK Decision and the Definition of Consent

I have held off writing about the DSK case being tossed out because honestly, I can’t really bear it. Plenty of other news sources and bloggers have reported on the reasons why I feel this is a catastrophic blow to victims of sexual assault, and reiterating it would likely only upset me and readers even more. However, a news story reported in my hometown paper, The Chronicle, got me thinking about the definitions of consent and what it means to be a person worthy of a trial, and I thought I’d tie these two instances together.

According to the DSK decision, if one has lied in the past they are considered unworthy of a trial in the eyes of the DA – whose goal seems to be focused solely on winning as opposed to determining if in this particular instance one is lying. Let’s look at the specific lies in question – namely, the reason behind Diallo’s asylum in the United States and her recounts of the story.

First, the defense is claiming that since she allegedly lied on her asylum application about being gang raped in her home country, she cannot be trusted in this accusation of DSK. Had she lied? Yes, she admitted to that. Does that matter in this specific case of DSK assaulting her in the hotel room when a forensic examination, including a medical exam, proved to be consistent with her story? No. When she lied on her asylum application – as many, many people do (an interesting and poignant piece in the New Yorker recently profiled this in a case example) – she did so to escape a country in which she felt constantly at risk and in danger and wanted to protect her daughter from the same fate. Should the fact that many people do this – and lie about repeated gang rapes in particular – immediately excuse the lie? No. But it does put it in the context of a reality that should not go unexamined. While lying in previous instances can make a case harder to win, and isn’t something I’m championing or condoning, when you look at her reasons for a falsehood on her asylum application, it make no sense that she would then risk a job she was grateful and proud to have gotten as a hotel housekeeper, raising in her daughter in New York, by having what the defense claims was consensual sex in the middle of her cleaning duties.

In regards to the changing of her story, it is well known and understood by trauma experts that women who have experienced sexual assault (and not just sexual assault, but any traumatic event, for both genders) often recall the order of events differently and clarify them as time goes on, due to the effects of the shock, denial, and the coping mechanism of blocking out of painful incidents. This does not mean that the assault didn’t happen, particularly since this reaction has been seen and understood many times over by many other rape and assault victims.

What I also find interesting in these cries about credibility is how gendered they are. DSK has a notorious history in France of being too forward and sexually aggressive with women; in my mind this causes some credibility issues for him as well, as he claims in this instance it was only consensual. It also reminds me of the fact that one of the NYPD officers acquitted this summer had a history of sexually harassing women, unsubstantiated arrest of a woman and blocking the filing of a report of the woman whom he sexually harassed – yet this was not seen as hampering his credibility. Nor was the fact that he made false 911 calls that routed him back to the apartment of the East Village victim and denied ever sleeping with her and then promptly changed his story to one of doing so but using a condom and assuring it was consensual. If we’re saying Diallo has credibility issues, I’d say these two need to join her on that wagon.

In the San Francisco case, we are confronted with a similar – though not the same – situation; one of assessing the validity of the accuser based on previous actions or claims. A SF lawyer (who specializes in sexual harassment cases, interestingly) is accused of raping three women, ages 19 – 36, whom he met over Craigslist while searching for partners interested in dominant-submissive rough sex. Two of the women had consented to having sex with this man on previous occasions before filing specific incidents of assault and rape. The man’s attorney has used this as evidence that the women were consensual partners, interested in engaging in sex and agreeing to what the man proposed in his post.

It seems we need a reminder of the definition of consent.

It does not matter if a woman is a prostitute. It does not matter if a woman had sex with you consensually in the past. It does not matter if in an email a woman expressed interest in specific sexual roles, positions, and activity. What matters is if in the specific encounter at hand, both parties have expressed the desire to go forward, and that if one withdraws that consent at any point it is the responsibility of the other to stop. The women could have easily agreed over an email exchange to engage in dominant-submissive sex, arrived at the man’s home still agreeing to it, and agreed to it right up to the minute they were to begin. But if in that minute she decided she no longer wanted to do this or was hesitant and unsure and wanted to wait, and he went ahead anyway – then it becomes rape.

Rape and sexual assault cases are notoriously difficult to try. They are usually he said/she said situations, at best aided by forensic evidence. Each case is unique, each has elements that are often not introduced or examined until a trial begins – this exemplifies the importance of scrutiny and juries who devote days to understanding the nuances and details of cases that are not reported or perceived by the media.

Setting the precedent that previously engaging in sexual activity, lying, or expressing interest in sexual experimentation eliminates your chances for a fair trial regarding the specific assault case at hand pushes us into the realm of implausibility. It is also worth noting that despite outcries of false accusations, the most frequently repeated results of studies regarding false claims and filings of rape show that the real rate of these is between 2% at its lowest and 7% at its highest (American Prosecutors Research Institute). But the media sheds so much light on the false claims that people presume it is much higher. The vast majority of rape and sexual assault charges never see the spotlight – perhaps because they aren’t dangerous enough or don’t involve high-ranking political figures or people whom media isn’t able to coin as gold-diggers and attention mongers because of their social or socioeconomic status. The bottom line is that each story deserves to be closely and carefully examined, and not discarded because a DA thinks he can’t win the case. District Attorney Vance is quoted as saying “If we don’t believe her beyond a reasonable doubt, we cannot expect a jury to.” I would venture to say that given the outcry over his decision, many people would like to hear the full story (and who do in fact think that the issue of reasonable doubt is in question) from both sides, with all the available evidence and fleshed out arguments. The issue of the truth, and seeking it, should take the precedence over one’s doubt at a courtroom victory.

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Filed under Feminism, Media, Politics, Sexism, Violence