DSK (and BHL)

Dominique Strauss-Kahn is experiencing the presumption of innocence at the heart of the American system of criminal justice. When he goes to trial, it will be up to the DA to prove the charges before he can be punished as a criminal; a jury, probably, will get to decide whether he is guilty or not.  The cards are stacked in his favor: they have to find that the charges are proved beyond a reasonable doubt, and all his defense team has to do is to show such doubt, not to prove him innocent; indeed, there is no finding of “innocent”: just “not guilty”, and you walk out the door.

He’s in jail now to assure his presence at his trial, not as punishment.  We let defendants out on bail as much as we can, consistent with assurance that they will not skip; in this case the judge was not so assured.

Presumed innocent has to do with what the government can do to you, not what people think of you, and Mark has a point about setting you up for pictures in handcuffs, pictures that cannot be untaken if you aren’t convicted. There is no requirement that citizens believe anything at all, including “innocent”, about an accused.    The smirking agreement now coming out in the French press is that DSK has always been a randy goat and everyone knew it.  The formal complaint of attempted rape from Tristane Banon, a complaint she was counseled out of filing at the time by her mother and other people who probably had her interest at heart, lead me to exercise my right to believe absent new evidence, that Strauss-Kahn tried to rape a poor woman who happened into his path because he thought he could, and my right to conjecture that he thought that because he had successfully done so in the past. This time he got the surprise of his life. I make it nine to two that more women will be heard from in this way now. YMMV, and the facts will tell.

DSK’s wife, having made it through an affair he had with a subordinate that almost cost him his job, says she doesn’t believe a word of this story.  Perhaps she doesn’t; perhaps he never tried to rape her, perhaps she has been protected from what everyone else in her circle seems to know, or perhaps she has her own odd ideas of what is attractive in a man.

What’s totally astonishing is the repulsive screed posted by Bernard-Henri Lévy, a journalist cum soi-disant philosopher claiming to be a twenty-year friend of Strauss-Kahn. An adequate translation is here, original here.  Short version:

DSK is my friend, and I am Bernard-Henri Lévy.  How dare these people of no importance treat him as though he has been credibly accused of a violent crime!  He has a wife, with whom I, BHL, have dined, at parties with witty and charming Important People, and to speak publicly of any of this is victimizing her.  To show my loyalty to this member of my privileged and superb tribe, I am going to make up nonsense about how rooms are cleaned in New York hotels, and assert, in my most magisterial way, that the US criminal justice system has a presumption of guilt. I have been to America, and I know about these things.  The idea that a chambermaid is permitted in that vile country to accuse a Man of Great Importance! That a servant is permitted to trip up the great enterprise of my beloved French socialism! That if my seductive, charming, friend DSK, who loves the ladies, especially his own three, has forced himself on women they are supposed to be seen as victims – the nerve!

Two French intellectuals with their reputations and careers in tatters, I would say.

Author: Michael O'Hare

Professor of Public Policy at the Goldman School of Public Policy, University of California, Berkeley, Michael O'Hare was raised in New York City and trained at Harvard as an architect and structural engineer. Diverted from an honest career designing buildings by the offer of a job in which he could think about anything he wanted to and spend his time with very smart and curious young people, he fell among economists and such like, and continues to benefit from their generosity with on-the-job social science training. He has followed the process and principles of design into "nonphysical environments" such as production processes in organizations, regulation, and information management and published a variety of research in environmental policy, government policy towards the arts, and management, with special interests in energy, facility siting, information and perceptions in public choice and work environments, and policy design. His current research is focused on transportation biofuels and their effects on global land use, food security, and international trade; regulatory policy in the face of scientific uncertainty; and, after a three-decade hiatus, on NIMBY conflicts afflicting high speed rail right-of-way and nuclear waste disposal sites. He is also a regular writer on pedagogy, especially teaching in professional education, and co-edited the "Curriculum and Case Notes" section of the Journal of Policy Analysis and Management. Between faculty appointments at the MIT Department of Urban Studies and Planning and the John F. Kennedy School of Government at Harvard, he was director of policy analysis at the Massachusetts Executive Office of Environmental Affairs. He has had visiting appointments at Università Bocconi in Milan and the National University of Singapore and teaches regularly in the Goldman School's executive (mid-career) programs. At GSPP, O'Hare has taught a studio course in Program and Policy Design, Arts and Cultural Policy, Public Management, the pedagogy course for graduate student instructors, Quantitative Methods, Environmental Policy, and the introduction to public policy for its undergraduate minor, which he supervises. Generally, he considers himself the school's resident expert in any subject in which there is no such thing as real expertise (a recent project concerned the governance and design of California county fairs), but is secure in the distinction of being the only faculty member with a metal lathe in his basement and a 4×5 Ebony view camera. At the moment, he would rather be making something with his hands than writing this blurb.

39 thoughts on “DSK (and BHL)”

  1. I am curious about this post. Leaving aside the ‘presumption of innocence” which I agree applies only in the legal context, you have obviously come to the conclusion that DSK tried to rape the hotel maid in the instant case and also tried to rape Tristane Banon (the woman about whom all France is now talking). And you obviously feel very strongly about these events. Here is my question: How did you determine that DSK tried to rape these two women and, perhaps, many others?

    I ask that question because in the instant case there is thus far absolutely no physical evidence or independent corroboration of her accusations. Simply none. And there are many disquieting factual inconsistencies in both the story supposedly told by the alleged victim and the timeline alleged by the prosecution.

    But, there is an important and objective test of her credibility: It seems that the complaining witness says she scratched DSK deeply in several places (and importantly, in places normally covered by clothing) and that he also scratched her in several places. Assuming she made that claim, shouldn’t you logically have withheld your judgment until after the results of the two examinations are disclosed? What if the examination of DSK’s body fails to corroborate her statement? What if there is no proof that the marks on her body were made by DSK?

    Now, in the instant case, we will soon know if that physical evidence exists. If it does, it takes the case out of the realm of “he said, she said” and DSK will undoubtedly be convicted at trial. But if there aren’t any marks where she says they should be and if traces of her skin, hair or clothing fibers aren’t found on DSK, then he might be innocent. Have you considered that possibility? Are there any circumstances under which you would even consider the possibility of DSK’s being innocent?

    The Banon allegations seem to me to be questionable on their face even though I, like many people, had always heard rumors and jokes about DSK’s relentless philandering and general boorishness. But never in connection with any violence until 2007 when Tristane Banon gave a television interview in which she claimed that DSK tried to rape her in 2002. She says that she remained silent on the advise of her mother, who thought that bring charges against DSK would be bad for Tristane’s career. Apparently by 2007 her career was better established or else the prevailing winds were blowing from a more conservative direction. And yet, even though she went public with her charges in 2007, she didn’t file a complaint and seemed to treat the matter very lightly until yesterday. She has now hired a lawyer and apparently wants money. There is absolutely no independent corroboration of her accusations. What I am curious about is what makes you so absolutely certain that Banon is telling the truth?

    (Apart, of course, from the fact the DSK is being defended by the great public intellectual and well-known defender of child rapists, BHL. Although, in fairness to BHL, I think your reading of his words is a bit over the top and reduces your own credibility. Even as snark, I don’t think you’ve fairly represented what he actually said. Also, since the Polanski affair I’ve stopped reading BHL altogether and I don’t know why you continue to read his self-important blovaiting.)

  2. Mitch, you seem to be suggesting that one should assign a prior probability of 50% to the likelihood that a woman making a formal accusation of rape is lying. This seems excessively high. The statistics of formal, public accusations of rape are probably not analogous to a coin flip.

  3. (Sorry. Clicking Warren Terra’s link shows he had the same thought I did.)

  4. I’m just supporting what J says. As long as credible estimates of false accusations of rape top out at less than 10% (click J’s link, I’m being generous here), I’m going to assume that there is a 90% chance that these women are telling the truth.

  5. There is not ‘no proof’ the marks on her were made by him: she says they were, and if 12 ordinary people looking her in the eye and listening to the tone of her voice believe her, that’s it.

  6. What’s lovely is American equal justice for all. It is great to see the arrogance of EU elitist trash take a nosedive on a wood bench in an East Harlem precint or have a fun night of it trying to keep his eyes open at Rikers. As a flight risk (we have no extradition treaty with France, I read – which seems weird), DSK is no better, no worse, than (shudder) a common criminal who can’t afford to post bond. Same treatment. Yes, DSK gets a lawyer, Ben Brafman, who charges, what- a $1 million retainer would you suppose? But also, yes, a judge, Melissa Jackson, with 22 years as a DA in Brooklyn who positively *likes* the sound of a jail house door slamming shut. So, welcome to American justice where we are blind – we finally hope – to privilege and we let a jury decide …. once we have made sure, in the words of Mark Moore, that you will “stand still for justice.”

  7. “There is absolutely no independent corroboration of her accusations”

    Nice. That’s certainly the determining factor in Saudi Arabia when a woman’s word is at issue.

  8. Shorter Mitch–
    A pattern of sexual misbehavior, multiple accusations of rape, and the judgment of the police as to the credibility of witnesses and the strength of the physical evidence all hold no water with me.

  9. What surprises me here on the part of the apologists is the implication that making a false rape accusation again someone rich and powerful is a plausible thing for a poor person to do. If the accusation is seen to be false, or perhaps even if it merely fails to win a conviction, the poor person is toast. Even if a conviction is gained, their life will be torn apart by defense-team operatives and reporters.

  10. @ Paul

    It is unfortunate that she is likely to have her life torn apart by defense team private investigators and reporters regardless of the truth of her accusation. In fact, if the allegations are true, she’s more likely to have her private life gone over with a nit-comb as they search for some set of irrelevant excuses to blame the victim.

  11. While I agree that the “presumption of innocence” is a legal issue, rather than something
    we all have to observe, I also think that there is nothing to be gained by judging this
    issue so quickly. The accusation is very serious; it is being investigated by the proper
    authorities, as it should be; and the evidence will be presented at trial. Once the
    investigation is concluded, we will all be in a much better position to judge the issue –
    whether or not it results in a conviction. The investigation might exonerate DSK; it
    might be like the Roethlisberger case, with strong evidence of loathsome behavior, but
    not quite enough for a responsible prosecutor to pursue it; or it might lead to conviction.

    No matter what happens, we’re better off waiting rather than rushing to judgment.

  12. “this member of my privileged and superb tribe”

    I have to admit, to me this reads as a thinly-veiled reference to their religion. Is that intentional or just an unfortunate choice of words?

  13. I am making no assumptions and, unlike certain commentators, I assign no probabilities at all. I do not automatically dismiss the possibility that DSK tried to rape this woman. Her charges are extremely serious and she deserves a fair hearing. What I find objectionable is that O’Hare and nearly all of the commentators on this post automatically dismiss the possibility that the Sofitel hotel maid’s accusation are false and seem to actually be offended by the very idea that they should be scrutinized at all.

  14. Thanks for posting the link to BHL’s original. Its tone may be a little closer to your short version than to the “adequate translation.” Lord knows, any of the versions beg to be read out loud, preferably while channeling either Rowan Atkinson or the late Peter Sellers. Levy’s screed boils down, alas, to reiterations of “how dare you!?”

    Mme. DSK, je vous presente Mlle. Shriver, acc Mme. Schwarzenegger.

  15. @J,

    You mistake me. I have no axe to grind here and I have prejudged nothing. I have no idea whether this woman is falsely accusing DSK or not. It seems to me, however, that applying a overlay of political or religious faith is far from a reliable way to determine truth. I think the best way to determine the truth for one’s self is to closely examine and test the evidence.

    The article which you cite indicates that the percentage of false accusations ranges from 8% to 40%, so it is clear that some effort to evaluate claims of rape (or attempted rape) is necessary and that uncritical acceptance of such charges on faith is unwarranted. Since even your own studies say that the incidence of false accusations is far from zero, I would ask why you seems to be so willing to accept this particular accusation as proven before we have learned the details (including whether the physical evidence supports her charges or casts doubt on them).

  16. @ Betsy,

    On the contrary, the reason why I and many others abhor the absurd presumptions against rape applied by certain tribal, Islamic societies is precisely because it does not allow consideration of the types of evidence which might independently establish the truth or falsity of the charges.

    In a way, you and the Saudis are two sides of the same coin. Both you and the Saudis are apparently are offended that anyone would look at evidence to seek the truth because you already know the truth. I don’t think I would want to live in a society in which justice was dispensed according to your faith any more than I’d want to live in Saudi Arabia.

  17. I’m sorry, but that “adequate translation” is a snarky paraphrase and a particularly nasty one at that. Hence the phrase Henry Clay spotted. It’s a little like a somewhat impassioned defense of, say, Bill Clinton might have looked like if satirized by Rush Limbaugh. If that’s what heightened so much of your dudgeon, it’s sadly misplaced.

  18. @ calling all toasters,

    I do not think you have actually read what I have written. But to address your specific points:

    1. I think I have made it clear that DSK’s history as a philander and sexual harasser does suggest a propensity for sexual aggression in my mind and makes me predisposed to consider him guilty, even though such evidence would probably not be admissible as evidence in court. But to say that I am predisposed against DSK is quite different from saying that my distaste for his history with women blinds me to the absolute necessity of subjecting the accusations against him to critical examination.

    2. As someone who has been involved in the criminal justice system for most of my adult life, I don’t actually place much importance on the judgement of the police, particularly if I’m in a position to view the evidence myself and make my own judgment as to the truth. I was brought up in a legal system in which we hold our trials in courthouse and not in police stations or newspapers.

    3. You are simply wrong in saying that the strength of the physical evidence is unimportant to me. In fact, in a case such as this, it is of the utmost importance. If there are deep scratches on DSK’s body and his skin is found under the complainant’s fingernails, this would significantly corroborate her charges. It would utterly destroy any alibi defense and also strongly refute a defense of consent. By the same token, DSK does not have scratch marks this would surely cast doubt on the rest of her story.

    4. There are not “multiple accusations of rape” as you claim. There are no accusations of rape. There is the accusation of attempted rape by Tristane Banon which I discussed previously. Again, there is nothing except for her charge that DSK tried to rape her and that she said nothing out of fear until the publication of Sexus Politicus forced her into the public eye. What makes me uneasy about her is that even after giving a public interview in 2007 (which seems to make her concerns about fear of reprisals moot) she did not pursue justice for herself (or, presumably, women in general) and her filing a complaint now makes her seem opportunistic and mercenary. But let me turn things around and ask you why you are prepared to uncritically accept what she says about that interview?

  19. Mitch writes: The article which you cite indicates that the percentage of false accusations ranges from 8% to 40%, so it is clear that some effort to evaluate claims of rape (or attempted rape) is necessary and that uncritical acceptance of such charges on faith is unwarranted. Since even your own studies say that the incidence of false accusations is far from zero, I would ask why you seems to be so willing to accept this particular accusation as proven before we have learned the details (including whether the physical evidence supports her charges or casts doubt on them).

    Actually, the numbers reported in the studies listed at wikipedia were 2%, 3%, 6%, 8%, and 40%. The latter would appear to be an outlier, and in any case the median percentage of false accusations reported in these studies is less than 10%. That suggests that, in the absence of any hard evidence, one should generally assume there’s a 90% or greater chance that a formal, public accusation of rape is genuine.

    That a priori probability doesn’t mean “accepting this particular accusation as proven”. DSK, like anyone charged with a crime but not yet convicted, is considered innocent in the eyes of the law and everyone here presumably recognizes the possibility that he could be exonerated at trial. But as of right now, the probability is > 90% that he will ultimately turn out to be guilty, based on the statistics cited.

  20. Interesting (perhaps inevitable) that the argument is so much apistomological.

    It recalls the hoary jury instruction “Rape is a charge easy to make and hard to disprove …(more or less) the prohibition of which took some evolving.

  21. Two French intellectuals with their reputations and careers in tatters, I would say.

    um, Michael: Who are you using as your basis of comparison?

  22. “Dominique Strauss-Kahn is experiencing the presumption of innocence at the heart of the American system of criminal justice.”

    I don’t know whether to say that this is hilarious or heart-breaking. The heart of “the American system of criminal justice” is the plea-bargain. The reason the DA wanted DSK incarcerated prior to trial is not because he’s a “flight risk.” It’s because being stuck on Rikers’ Island in solitary, potentially for months or years until it’s time for trial, is one hell of an incentive to plead guilty.

    As for the “presumption of innocence,” the police have as usual been selectively leaking like crazy about DNA evidence and DSK has been paraded on TV in hand-cuffs for no reason other than to send the message to the potential jury pool that he’s guilty.

    Even so, unlike most defendants in the US, DSK is rich, so he can afford competent counsel who have the ability to take the case to trial, where he may be able to win a not-guilty verdict, regardless of whether he’s actually guilty (OJ, anyone?)

    But most US defendants are either poor to begin with or would be impoverished by the cost of a decent defense. They don’t get the “presumption of innocence” – they get a plea bargain that’s worked out as a deal between an overworked ADA who wants to get rid of the file and an underpaid defense attorney who doesn’t have the time or the money to take the case to trial.

  23. Henry Clay: the tribe I had in mind was well-cared-for, entitled, French political intellectuals; énarques, ensers, and their orbit. I was neither imputing a “Jewish angle” to BHL nor inferring one from the events.

  24. @ J,

    All snark and back and forth aside, I would like to suggest that you read Prof. Tribe’s article “Trial by Mathematics”, 84 Harv. L. Rev. 1329 (1971) and the case that inspired it, People v. Collins, 68 Cal.2d 319 (1968), before so blithely dismissing the significance of individualized proof or arguing statistical probabilities of guilt.

    Consider this hypothetical (based on a combination of Collins and the Sally Clark case and, obviously, the movie Casino): A man walks into the Sands Casino in Las Vegas. He goes to the $100K limit table and bets the maximum. He get a blackjack. He again bets the maximum and again gets a blackjack. He repeats this eight more times and then quits and starts to walk out of the casino. A mathematically inclined employee of the Sands calculates (lets assume correctly) that the odds of receiving 10 consecutive blackjacks is in the tens of millions. He notifies hotel security. They throughly investigate every possible avenue of manipulating the game but find not even a hint of cheating. There is nothing wrong with the cards, the dealer is totally innocent and the player never touched the cards at all. As far as the experts in hotel security can determine, it was absolutely impossible for the player to have cheated. Nevertheless, the man is arrested and brought to trial for cheating the Sands casino. The only evidence is the testimony of an expert statistician who establishes that the odds of a player receiving 10 consecutive blackjacks is one-in-ten million. The prosecutor then argues that this means that there is only a one-in-ten million chance that the defendant is innocent. And so, he argues, this is surely proof beyond a reasonable doubt that the player must have been cheating.

    Do you think the prosecutor is correct? If you were on the jury, would you be willing to convict based on this statistical analysis alone or would you require some form of individualized proof of guilt (i.e., proof of cheating)?

  25. The intention may be pure, but the use of the word “tribe” is surely
    ill-advised and open to misinterpretation in this context.

  26. “The cards are stacked in his favor: [the jurors] have to find that the charges are proved beyond a reasonable doubt, and all his defense team has to do is to show such doubt, not to prove him innocent; indeed, there is no finding of “innocent”: just “not guilty”, and you walk out the door.”

    I’m guessing that you’ve never tried a criminal case, which tends to give a person a different perspective on the nature of the stacking.

  27. Mitch, you’re still stuck on the mistaken idea of applying courtroom standards outside the courtroom.

    From what I can see, the vast majority (over 90%) of people who are formally accused of rape do in fact turn out to be guilty.

    Neither I nor anybody else is saying that we can use that fact to convict someone (DSK, or anyone) in the absence of evidence.

    But when there’s no other evidence available (say, the case hasn’t gone to trial yet, and you don’t trust anything you see in the media) you’d be a fool to ignore that over-90% a priori probability when you are informally assessing someone’s likelihood of being eventually found guilty.

    Obviously, if someone here gets called as a juror in DSK’s trial, they should ignore this line of reasoning. It only applies outside the courtroom.

    Got it now?

  28. hi.
    i’m just curious. where does this translation come from? I couldn’t find ANYTHING you have up there in the blog posting…the horrendous “servant” comment in particular, seems completely made up to me.

  29. My version doesn’t pretend to be a translation! that’s why a linked to a real translation and the original. It’s a critique whose rhetorical form is a paraphrase that makes subtext and tone (as discerned by me) explicit.

  30. Nobody asked me but I bet he pleads to misdemeanor sexual battery or something like that. He said/she said allegations are ALWAYS hard to evaluate, and there are circumstances here that make it seem a little more likely to me that she is not lying about what happened, but without specifics it’s hard to know whether there still might be a misunderstanding at work (e.g., she comes into the room and he walks out naked — that to me as a single woman in a room is an alarming and even threatening development but if that was it it wouldn’t be attempted rape). The facts that make it less likely that she is lying is that she was on duty, he summoned an employee and presumably not by name, she kept the door open, he summoned an employee and then took his clothes off (even if it was to take a shower, one might infer that he planned to be naked when the employee arrived). And so on — the details are in her favor, not his, but unless we know the specifics it’s hard to speculate much beyond that.

  31. Guys — the “translation” you give here is really unfair, even allowing for some liberties to put across your point of view. But it is so exagerrated a translation as to misrepresent Levy’s words, and so you are arguing against a straw man rather than an actual man. This feels a bit pat and lazy. Kudos at least for linking to the original.

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