IMF chief's defense has many cards to play

Agence France-Presse

Posted at May 19 2011 10:50 AM | Updated as of May 19 2011 06:50 PM

NEW YORK - From flat denial to claiming consensual sex, Dominique Strauss-Kahn's lawyers have several potentially strong cards in their defense against charges that the IMF chief tried to rape a hotel maid.

The 62-year-old French politician and global financial authority may seem on the ropes as he waits in an isolation cell on Rikers Island.

But in a trial, his skilled legal team led by star attorney Benjamin Brafman will come out fighting. And it may be the alleged victim, an immigrant from Guinea cleaning rooms at the Sofitel in Manhattan, who finds herself under the most withering fire, experts say.

In a majority of sex crime cases, prosecutors are handicapped from the outset because the alleged incident took place in private.

"Sexual assault cases are tremendously difficult to prove and I think that one of the reasons why they're difficult to prove is because it's very rare that there are witnesses," Brenda Smith, a professor at American University Washington College of Law, said.

If prosecutors do not have good physical evidence proving a sexual encounter took place, Strauss-Kahn's attorneys could argue simply that nothing happened.

Already his lawyers have detailed how he went to have lunch right after the moment when the attack supposedly took place -- evidence, they claim, of a man living his normal life, not a criminal fleeing the scene.

If, as seems more likely, prosecutors show the encounter occurred with forensic evidence, then Brafman can still argue there was consent.

At that point, the trial turns into a contest between two narratives, an elaborate version of the old "he said, she said."

Again, prosecutors are handicapped, because they have to prove there was no consent, while the defense has only to sow reasonable doubt.

Smith, an expert on sexual violence, said Brafman can mount a convincing argument that this hugely important international figure would never try to rape a humble cleaning woman, even if he did want sex.

"My story, or narrative, would be that I was staying in a $3,000 a night room. I had no reason, no motive at all to sexually assault this person. If I wanted sex I certainly had the wherewithal to purchase it," Smith said.

The fact that he's French and she's from a French-speaking African country will also help the defense narrative of the maid as a willing participant -- and maybe even as a woman who'd had sexual contact with Strauss-Kahn at the Sofitel in the past.

"I'd draw as many similarities as I can draw between me and the victim," Smith said.

Of course, a consensual encounter can degenerate into attempted rape and prosecutors will be collecting forensic evidence to try and prove that.

In addition to scrutinizing DNA samples, blood, semen and saliva, lawyers will want to see surveillance tapes and key card information as to who entered the room and when, said criminal defense lawyer Eric Rothstein.

"You have to look at the forensics. Are their bruises on her, is there tearing or blood? Or scratches that would be inconsistent with consent and more consistent with physical force being used?

"They will have examined him from head to toe and presumably took photographs. Are there cuts on him that might be defensive on her? I'm sure they'll want to look under her nails."

But physical evidence might still not provide a true smoking gun.

"Scratches, bruises -- that can happen from consensual sex as well," noted Larry Cunningham, an associate dean and assistant professor at St. John's School of Law in New York.

As arguments see-saw between testimony and cross-examination, the court is likely to hear aspects that go far beyond the confines of the 28th floor luxury suite where Strauss-Kahn was staying on the day of Saturday's alleged crime.

Prosecutors might bring up Strauss-Kahn's reputation as someone with a past of sexual misconduct.

However, there are strict rules in US courts that may bar the introduction of testimony that the judge deems too distant from the specifics of the actual case.

On the other side, the alleged victim will probably find herself in the crosshairs of Brafman, a lawyer who has represented Michael Jackson, a rap star, an American football star and other high profile clients. His job will be to muddy the simple story of a hotel maid who was ambushed and assaulted by an immensely powerful guest.

"You can spin the story in a number of ways. As the prosecutor you can certainly spin it as someone who took advantage of this woman who was very vulnerable," Smith said.

But the alleged victim will find her past being probed, her life in Africa, and possibly reports that she has been living in a New York housing block reserved for people with HIV.

"If so, then how did she become infected? Is she an IV drug user or is it the case as with many women in Africa that they were infected by their partners?" Smith said. Lawyers will see whether previously "she might be involved in sex work."

On Friday, Strauss-Kahn finds out whether a grand jury voted to send his case to trial.

He has meanwhile waived extradition rights and remains under 24-hour surveillance in a new bail application to be submitted Thursday in a bid to be let out of jail before he returns to court.

An actual trial would not take place probably for months and in the meantime prosecutors and Strauss-Kahn's team could come up with a plea bargain: he would plead guilty, avoiding trial and in return receive a reduced sentence.

Certainly going to trial, where a jury of 12 New Yorkers has the last word, would be nerve-racking for all.

"Both sides are taking a gamble when they go to trial because you never know what the jury will do," Cunningham said.