Is the Head of the IMF a Sex Criminal?

The circus surrounding the arrest of Dominique Strauss-Kahn (DSK, as the French call him) for allegedly sexually assaulting a chambermaid in his Manhattan hotel has begun to subside. He has been indicted by a grand jury, is at liberty under extremely rigorous bail conditions, and faces serious felony charges that would give any guilty man pause for thought about fleeing the jurisdiction.

When he was arrested over a week ago in his first-class seat on a plane about to take off to Paris, the District Attorney -- feeding a salivating media -- demanded that DSK be remanded to jail instead of getting bail. The very able judge agreed, and DSK became an inmate at New York's version of Devil's Island. The French press, with a degree of self-righteous pomposity, decried DSK's treatment by U.S. law enforcement, claiming, among other things, that denying him his liberty without any formal proof of guilt and the rush to judgment of his guilt were monstrous injustices that shamed the U.S. justice system in the eyes of the world.

The French do have a point. Why no bail? Was the district attorney merely feeding the media frenzy? To be sure, the district attorney told the judge that DSK had been arrested on board an airline about to depart for France, a country that does not extradite its citizens. That reason alone shows that DSK presents a huge risk to abscond before his trial. The District Attorney did not, in the process, however, tell "the world" that DSK had apparently booked this flight about a week earlier, had called the hotel from the airport, and that the defendant offered the District Attorney before his arraignment to undertake extremely onerous bail conditions to ensure that he would not flee. Indeed, on review several days later, the administrative judge granted bail, conditioned on DSK posting a $1 million dollar bond, a $5 million dollar insurance policy, wearing an electronic ankle bracelet to monitor his movements that would restrict him to an apartment under supervision of a private investigation firm authorized by the court, surrendering his passport, and waiving extradition back to the United States if he managed to flee. So, a now fully apprised judge prevailed, reminding the world that the United States does indeed believe in due process, fair play and justice, notwithstanding alleged conduct from an international big shot that all people, including the French, would consider despicable if it turns out that he is guilty.

But the controversy surrounding DSK's bail raises a far more fundamental question. What is it about the bail bond system in the U.S. that for many critics -- including, judges, prosecutors and bar associations -- is so odious, so unfair, and indeed one of the dirty secrets in criminal law? To be sure, the U.S. Constitution in the Eighth Amendment states tersely: "Excessive bail shall not be required." But while bail is typically used to assure that a person accused of a crime and is released from custody returns to court to answer those charges, the courts have never held that there is a "right" to bail.

Nevertheless, surely the French have a point where, for example, in the U.S. federal courts bail can be set on a showing that the defendant will in some way be "dangerous," a showing on which the defendant, in some cases, carries the burden of proof. Still, historically, bail has been about "flight risk," not preventive detention, and the reason high bail might be needed for someone like DSK is because he might pose such a risk given his abundant resources, not because there is any serious concern he would run amok in hotel rooms around New York while awaiting trial.

But beyond that, the concept of a person charged with a crime and presumed innocent having to pay a fee to a bail bondsman -- who then decides if the defendant is a good bail risk -- to gain his freedom while awaiting trial is almost unheard of anywhere else in the world. In fact, in many countries, including England and Canada, agreeing to pay a defendant's bond for a fee is a serious crime, similar to tampering with a witness or bribing a juror. Alternatives include deposits to courts instead of private businesses, pledges of land or other property, and sworn promises to return to court.

The U.S. bail bond system has been shadowed by numerous well-documented accounts of serious abuses of bail by bondsmen. These lightly regulated businesses have been accused of retaining the collateral -- cash or property -- that persons must put up to get a bond, even though they are required to return the collateral after the case is over. And in some circumstances, bail bondsmen (some of whom fancy themselves as quasi-cops), can decide on their own that they don't like the defendant's behavior and revoke their bond, thereby putting the defendant back in jail (although the bail bondsman gets to keep the fees).

There's virtually no legal accountability and the bail bond industry has proven difficult to regulate effectively. For one thing, much of what goes on between bail bondsmen and their clients occurs in private. In such a climate of secrecy, it should not be surprising that allegations of corruption have clouded the commercial bail bond business, including accounts of collusion between bail bond companies, judges and police officials. And then there are the stories of bond enforcement agents hired to capture persons who have failed to appear in court -- the so-called "bounty hunters" -- who operate outside the legal system, and who are notorious for breaking into people's homes without a warrant, holding innocent people against their will, coercing statements, and forcibly taking people across state lines in violation of state extradition processes. The Fourth Amendment does not apply to such bounty hunters because they are not public employees.

But more egregiously, there is the serious inequality that historically has haunted the bail system. As with so many other aspects of the criminal justice system, the kind of justice a person gets often depends on the amount of money he has. To be sure, every poor person charged with a crime gets a lawyer, and has some typically meager opportunity for expert and investigative assistance. But not every defendant is a wealthy aristocrat like DSK, who can afford to post a million dollar bond.

Most criminal defendants, in fact, are poor people who can't afford bail and have insufficient means to get a bail bondsman to put up a bond. These defendants -- accused of crimes but "presumed innocent" -- remain incarcerated awaiting trial, sometimes for months, sometimes for years. The prejudice to their cases from their inability to gain their freedom pretrial is extreme. Sitting in their jail cells, they have no ability to investigate their cases or assist their lawyers, except in a limited and superficial way. They enter the courtroom from their cell, and stand before the jury not as free men walking in from the street, but attired in prison garb, with court officials surrounding them to assure they do not flee.

And worst of all, far too many poor, innocent, defendants actually plead guilty to criminal offenses because the bail set against them is high and unaffordable by them -- and they are forced to languish in jail awaiting trial recognizing that, if acquitted at trial, they will have served all that time for naught. Thus, arraigned defendants who can't afford bail while awaiting trial are too often effectively told, for example: "plead guilty and be sentenced to 30 days beginning today; if not, we'll adjourn the case for 45 days for the lawyers to file and litigate pre-trial motions." That innocents faced with such a draconian choice often plead guilty is not surprising, but it is nonetheless disgraceful.

The ultimate bail result that DSK received was the correct one -- even if the forensic evidence, as is being reported, begins to pile up against him. Given the severe restrictions placed on him, he is unlikely to flee. Still, the controversy surrounding Strauss-Kahn should cause us to rethink how our system works for the average defendant in the United States. And frankly, we don't need any help from the French.

The soul searching on this side of the pond continues......

. And in this incidence will this man, if found innocent, ever recover his life ? If he is found guilty, then no problem . This leaves out whether he is guilty or innocent and whether the speculation of guilt complicates the trial unnecessarily

Just the fact of an arrest, or seeing such photos, does not seem to unduly influence most potential jurors here.

And the state still has to prove those crimes to a jury's satisfaction, and none of the speculation going on now, about his possible guilt, is going to affect that.

That's a silly assumption to make, FF. Instead of making lame excuses for a Hollywood justice system, why not try to change it?

Our criminal justice system was working before DSK got arrested and it will be working just fine long after most people have completely forgotten about him. He has been treated just like everyone else.

People are arrested on the assumption they are probably guilty.

I don't think the photos in handcuffs add to that assumption of guilt.

Justice is in the eye of the beholder, in this case it looks like the DA's version is anything that will not get overturned on appeal.

There is absolutely nothing that has taken place so far that would give indication that this DA is focused on a fair shake for the accused,

Pretty clear where you stand on "guilty until proven innocent".

I want the D.A, to be focused on trying to win a case, since he obviously believes the defendant to be guilty, otherwise he wouldn't be moving toward trial.

What's wrong with giving hotel workers panic buttons?

I believe those people can recover their lives because no cloud of suspicion would hang over their head.

In 1991 I was a well respected, well liked lecturer in Theatre at the University of Ulster in Coleraine, Northern Ireland. On 21st June I was arrested in front of my 80 year old mother, interrogated over several hours, charged with rape and buggery, photographed and fingerprinted, and locked in a cell at the police station.

Fortunately, I was released on bail the following day but was suspended from my post and banned from setting foot on the campus. The sole reason for all this was because one of my students, with whom I had never had any physical contact, had claimed that I had viciously assaulted, raped and buggered her four and a half months previously in my office at the university, on a busy corridor at midday.

There was (and could not be) any forensic evidence (although she did later produce a bra, which police discovered had been cut not torn…). The only evidence was her statement. Since she had already sought attention by claiming to have been beaten up by other students, and stating that she suffered from a hole in the heart, leukaemia and breast cancer, one might have imagined that her veracity in this case would have been doubted.

Further, her statement was full of inconsistencies and improbabilities: she was supposedly gagged by me but then forced to commit fellatio, I allegedly orgasmed in her vagina, then turned her over and immediately penetrated her anus (hardly likely for a man in his fifties), I supposedly placed my whole hand in her vagina, and, despite allegedly having her clothes torn off her, being raped, buggered, punched and kicked, she made her way unseen by anyone at a busy time of day to her room in the University and then went out shopping with friends.

While I was suspended from the University, she was not only allowed to stay on but was assured that she would not suffer any ill consequences for alleging this rape. Her anonymity was protected, mine was not. The police conducted enquiries over several months, which seemed to focus solely on an attempt to prove me guilty (the best that they could come up with was that I wore leather clothing – I rode a motorbike to work – and that once I was seen to sweat when talking to students).

My only defence was that it did not happen: it is impossible to prove a negative. I had to appear in court once a month ‘to answer bail’, she never once had to enter a court. Since part of my bail conditions were that I was to have no contact with what was laughingly called ‘the injured party’, she could at any time have invented a new lie that I had threatened her, and so could have caused me to be re-arrested and retained on remand. I was forced to move away to England, far away from my family, and obliging me to place my mother in an old people’s home.

After seven months of this continuing nightmare, she went to the police with further allegations: that I had not just raped her once but several times, including ‘under the steps of the University’. She was then interviewed in person by the DPP, and they directed that charges against me should be dropped. In March 1992 I appeared before the magistrates for the last time and was simply told that I was free to go.

A good woman friend who was prepared to organise such a meeting was warned by a women’s group that she should no longer associate with me.

I was reinstated at the University, but some students, understandably believing the stories that she was able to invent in my absence, considered the outcome to be a ‘white-wash’, boycotted my classes, circulated a leaflet denouncing me, threatened to slash the tires of my motorbike, etc. I offered to meet openly with students to discuss my case in any forum they chose. A good woman friend who was prepared to organise such a meeting was warned by a women’s group that she should no longer associate with me. The University took away all my managerial duties and refused my promotion to Professor, which had been virtually promised me.

In November 1993 I was appointed to a Professorship at De Montfort University in Leicester, even though the interview panel were well aware of the allegations that had been made against me. I cannot emphasise enough how lucky I was to encounter an enlightened institution which was prepared to give me the benefit of the doubt; for, despite my eminence in my field, all previous applications for posts – even for one for which I had been previously head-hunted – were turned down without explanation. I was, however, now separated from my family by many miles and the Irish Sea, and my partner (who can blame her?) was now seeing another man.

After some months in my new post I was served with a civil writ, once again alleging rape. My accuser, who had transferred to Manchester University after my return to the University of Ulster, had begun to stage epileptic fits. When a scan proved that she was not epileptic, she was referred to a psychiatrist, who diagnosed ‘post-traumatic stress disorder’ as a result of the ‘rape’ and who urged her to pursue the matter in the civil courts.

She was awarded legal aid to conduct her action, while it was to cost me well over £10,000. I was repeatedly offered the opportunity to pay off my accuser, and indeed it would have been cheaper to have done so, but I could not have lived with myself if I had taken this easy way out. Far from supporting me in any way, the University insisted that I should be personally liable for any damages to them resulting from the action. To this day she is protected by anonymity; I, who have been declared innocent by both the criminal and civil courts, had articles written about me in the press (admittedly all favourable – but nevertheless a strain on my family).

When, after more years of this living nightmare, the case finally came to court in May 1998, she did not even appear. The case was dropped and costs awarded against her. This was meaningless, since someone who is legally aided does not have to pay any costs.

Despite what I went through, I regard myself as very lucky. I am now very happily married, have a good job, and, although relations with my ex-partner remain strained, I have a good relationship with my children.

I am neither bitter nor angry, but for the sake of the many men who have been or will be falsely accused of rape, I wish to ask the following:

Why are innocent men named, while their lying accusers remain anonymous?

If it is important to name men so that women who have been raped by them will come forward, is it not also important to name women who have made false accusations in the past, so that men can come forward?

Why, in a modern democracy, is a totally uncorroborated statement by one person with no forensic evidence whatsoever regarded as sufficient grounds for arrest and imprisonment?

Why is a man accused of rape regarded as guilty until proved innocent?

Why is a man accused of rape regarded as guilty until proved innocent?

If the authorities award legal aid to a false rape accuser, why are they not liable for costs when it becomes clear that their judgment was at fault?

Why should a woman, who has put a man at risk of years of imprisonment through her lies, not face a similar prospect by being charged with wasting police time and, in an ideal world, of committing the offence of False Rape Allegation? (In the case, like mine, of a woman who was probably mentally disturbed rather than malicious, enforced counselling rather than imprisonment might be more appropriate)

Professor Michael Patterson

firefly wrote:

What's wrong with giving hotel workers panic buttons?

There's nothing wrong with giving them panic buttons but passing a law requiring that they be given panic buttons is idiotic.

Again I find myself hoping to Hell that you did not go to law school....DA and defense attorneys are not equals, defense has as its only obligation to represent the best interests of the defendant....DA's have the responsibility to make sure that justice prevails, which means to only try to win if they are sure the defendant is guilty, and to conduct themselves above board. The means matter as much as do the results.

The D.A. is committed to upholding the law and seeking punishment for those who break the law--that's "justice" to a D.A.

All too often, [allowed that they are not completely to blame for this], justice is advancing a career.

We have an adversarial system of justice--one side pitted against another--and that is what, hopefully, insures fairness and justice.

That's true for defense attorneys too--they want to win to advance, and enhance, their own careers and the fees they charge.