Dominic Strauss-Kahn released

[aliceliddell]

There is no case to answer because Ms Diallo is an 'unreliable witness'. No medical or forensic evidence is relevant. When raped women are 'witnesses' in the legal system, their credibility is the topic of contention, not the evidence. The issue of consent is largely ignored. Criminal law requires 'presumption of innocence' and 'beyond reasonable doubt'. Is it this combination that results in an inadequate legal response to sexual violence or other factors? Can this be changed?

What about the idea of Enthusiastic Consent then?

I was once unlucky enough to be sat at the next table up from Bernard Manning and his friends in a quiet pub (til they arrived). He made a vile joke and waitress didn' smile. He called her a lesbian. Came across as a joke but I think a lot of men do think like that.

I called him a c**t.

Ooh, can't believe I haven't mentioned this already today. I once met DSK. He was minister at the time. He didn't hit on to me. Should I be offended or relieved ?

Yes, but the difference is that I could get a lesbian but Bernard Manning couldn't get a c**t

Oh Cheria! I'm so sorry. You must be devastated.

It has taken me the last 13 years to try and come to terms with it :)

Radio four reports demo outside court in support of Diallo. Meanwhile in France speculation on his rehabilitation. God I love this. Really.

"Why are we not starting from the legally logical assumption that the sex was not consensual and it is up to the defendant to prove that consent was obtained?"

...

Are you serious?

I'm not saying that's what we should do, but why is that more shocking than assuming that a woman is lying about the fact that she is raped?

Especially when most rapists do lie and most victims do not.

Yes, I am very serious. What's wrong with that idea? Is sex really SO very different from all the other forms of interaction between humans where active confirmation of agreement is required?

We sign cheques and put our pin numbers into credit card readers to say we DO want to pay our money to someone. We don't do that to confirm that we DON'T want a stranger to take our money.

We sign deed to confirm that we DO want to take out a mortgage. It's not assumed that we do unless we actively tell the bank that we don't.

I mean, can anyone think of any other kind of arrangement where one has to prove that they didn't agree to something or otherwise it is assumed that they did agree?

Why is it so shocking to start off with the idea that sex was non consensual in a rape accusation?

Because you see, otherwise one is starting off with the assumption that the victim is lying. This sort of thinking is why rape convictions are so low and why so many women choose not to report rape. The consequence is that most rapists get away with it (and re-offend) - this makes a mockery of the idea that rape is illegal and punished seriously and that women have the right to bodily integrity and justice when their bodily integrity is violated.

Everyone knows that in a rape case the defence is based purely on claiming 'she wanted it'. It shouldn't be up for the victim to prove they didn't want to - it should be up to the defendant to prove beyond all reasonable doubt that consent was obtained.

HeifferunderConstruction: why is she unreliable?

This was linked higher up in the thread, an provides details of the ways in which she was found unreliable.

These are of course specific to this case only. Other prosecutions, with different features of "unreliability" have, and I expect, will continue to go ahead. It is the number of changes of story, and the time elapsed since the event when the changes occurred, that are clearly the sticking point in this one case.

BTW: CRIKRI - any litigation involving an oral agreement can come down to one party's word against another's. It is far from unusual.

Yes, with oral agreements, it can be a case of one party's word against another. However, it is not automatically assumed that the complainant verbally agreed to the "contract" unless they can prove otherwise.

That IS what happens with rape, however. It starts from the assumption that women (and some men) always consent to sex, until proven otherwise.

I understand why the case was dropped, based on the system of justice it was being tried under and the culture within which the jury would be drawn.

My fundamental problems with trying rape cases in these conditions are twofold. Firstly, the prosecution must prove a negative i.e. that the victim did not consent. Secondly, that mens (ha!) rea means that the rapist must have intent to commit rape (as opposed to have sex), and the "reasonable belief" of consent is stretched almost to impossibility. That case of the woman who was raped (yes, she was) by the guy who thought she was his girlfriend still leaves me with steam blowing out of ears.

I am all for civil cases being pursued, with the caveat that they can be more traumatic for the victim because of the different process vis a vis evidence giving.

One of the reasons for the decision that she would make an unreliable witness on the stand was the fact that she had admitted to lying previously about having been raped, in order to gain entry to the US. She learnt a story off by heart from a cassette that she was given, and cried very convincing tears to back it up. That is rather different thing from someone once having smoked pot - it would be too easy for the opposite side to argue that she had once convinced officials she had been raped, in order to gain personal advantage, and had just done so again for the same reasons.

I'm not saying she did lie this time, and I can quite see why someone might be prepared to do so to leave a country where they thought their life was in danger. But her track record on this specific issue made her too weak a witness to put before the court.

We'll never know what happened. But I am not that old, and my initial reaction when the news broke was to say to DH that if you were writing a novel with even a minor claim to realism you just wouldn't have a Presidential candidate announce his wife's pregnancy in the same week his key opponent was accused of rape. I did wonder how Sarkozy had wangled that little number.

I think his track record on this specific issue makes his position very weak.

He lied about this actual sexual encounter by claiming it never took place. He has a track record of sexual harassment and another woman saying he attempted to rape her.

If we are going to scrutinise Madame Diallo, surely DSK should be treated in the same way? (Although I won't hold my breath that poor immigrant women of colour will get treated the same as rich powerful white men of privilege.)

"If in a sexual assault, the victim is regarded as a witness, why should previous examples of illegal or dishonest activity automatically negate her testimony as unreliable"

Because her previous example of "dishonest activity" was another detailed and believable rape story, which turned out to be fabricated. So yes, it does undermine her credibility here.

I agree that it does undermine her credibility, but I think it only undermines it seriously if you take the story out of context.

Mrs Diallo lied about being gang raped in order to escape a dangerous country where gang rape is an everyday real risk to women. She didn't lie about this in order to create a false rape charge. She also, poor thing, couldn't have known that she would be the victim of rape in the future and have this action used against her in order to have charges dropped.

More context - forensic evidence proves beyond reasonable doubt that a sexual encounter occurred between DSK and Mrs Diallo. She says it was rape, he says it was consensual.

They have both lied about things - she lied in order to flee a country where she was under risk. He lied about whether he had a sexual encounter with her in the first place.

Seems to me that his lie is a whole lot more relevant to this actual case than hers.

Her lie about the gang rape had a perfectly understandable motive.

What would be her motive for lying about whether DSK raped her or not?

What would be his motive for lying about whether he raped her or not (or indeed whether he had any sexual encounter with her or not)?

Mrs Diallo may be considered to be too weak a witness. However, I think she is only a weak witness because the current legal system makes rape cases very very antagonistic where the point isn't to find out what really happened but to discredit the woman and get the man off at all costs. Rape victims are still being put on trial themselves even though it is officially illegal to do so.

I blame the patriarchy.

I'm still upset about this and made the mistake of switching on French news last night, where everyone is saying he was exonersated (no he wasn't, the charges were dropped on a flimsy pretext and charges have been brought forward on other people with far less evidence and credibility than that) and that it is time to rehabilitate him back into French politics. All I can say to thta is noooooooooooooooooooooooooooo.

Oh I also heard this morning that HE is being advised to sue HER !!!

I will be surprised if her civil case is successful. I agree with the first 8 words of beachcombers last post but very few would agree with much of the rest of it...

And why shouldn't he be advised to sue her? I am sure that we have not heard the last of this, and as I said yesterday, I see similarities between this and Julian Assange. All too convenient for the US. The players involved in it are just pawns.

Fewcloudy are you suggesting that rape court cases are not antagonistic and adversarial?

I doubt there are many feminists who would agree with that.

I too see similarities with this and Assange - people who would normally snort at conspiracy theories are suddenly donning their tinfoil hats because it is like really unlikely that a man with a reputation for sexually harassing and assaulting women and abusing his position of power might commit rape. It is of course so much more likely that said serial predator has been set up .

One problem with that theory is that it ignores the human being status of Mrs Diallo in all this. She isn't a pawn, she is a person.

Sure it might suit certain people that DSK has finally been named for what he is and they no doubt didn't pull strings too fast to get him off the hook. In the end the old boys club/network/ will protect him from even being questioned about his actions.

When he allegedly attempted to rape Tristane Banon was that a set up too?

fewcloudy - Did you read my post last night about the origin of the Assange conspiracy theory originating with Israel Shamir, a known anti-semite and quasi-fascist? There was no other source apart from constant repetition of the same old same old by misogynist gits