Three years later, after a thorough investigation by the New York County District Attorney’s Office, the woman recants her testimony and admits that she perjured herself before the grand jury and at trial. The district attorney consents to the prompt release of the defendant from prison. The woman, who has an infant and a 7-year-old child, is indicted and pleads guilty to two counts of perjury for her false grand jury and trial testimony. She is sentenced to one to three years in prison. The original rape investigation, prosecution, conviction, recantation, perjury indictment, plea and sentencing were undertaken by the New York County District Attorney’s Office during the tenure of Robert M. Morgenthau and concluded by his successor, Cyrus R. Vance Jr.
In that case, did the New York prosecutors act improperly in accepting the woman’s testimony, rejecting the defendant’s denials, and pressing for conviction and a lengthy prison sentence? Should the prosecutors have conducted a more thorough investigation of the woman’s credibility before proceeding to indictment and trial? The answer should be “no” for multiple reasons, including, most importantly, an ethical prosecutor’s response to a long history in America of rejecting women’s rape complaints as “unfounded.” Echoing the view of a generation of feminist rape law reformers, Professor Cassia Spohn of Arizona State University School of Criminology and Criminal Justice declared that frequently in “a rape case, it is the victim, not the defendant, who is on trial.” In the past, traditional impediments to successful prosecution of a rape case, such as permitting examination of the victim’s sexual history, led feminist critics, with considerable justification, to argue that the technical requirements of rape law made it easy to commit rape and get away with it.
The reluctance to treat with skepticism a women’s complaint of rape, then, finds considerable justification in prosecutorial reluctance to put the rape victim on trial. That does not mean, however, that prosecutors should not conduct a thorough investigation before instituting a rape prosecution. Which brings us to the Dominique Strauss-Kahn case.
The DSK complainant was intensively interviewed by police and senior seasoned New York prosecutors. She repeated graphic details of her assertions of sexual assault and there was physical and testimonial evidence to corroborate her version of the attack. Police and prosecutorial investigators were convinced her account was truthful. The accused rapist was about to depart to an Air France flight to Paris and would have been beyond the reach of American criminal law. The flight and European freedom of convicted sex offender Roman Polanski was an obvious point of reference although the judge, to his credit, in considering pretrial release for DSK, declared the Polanski experience irrelevant.
Initially denied bail, DSK was, within a week, released under stringent conditions. The prosecutors spent the ensuing four weeks examining the victim’s background. The prosecutor learned disquieting facts that seriously undermined the woman’s credibility, including prior false claims of rape in her application for political asylum and false testimony before the grand jury. Vance’s office then promptly turned the exculpatory evidence over to both defense counsel, requested a prompt judicial hearing and did not opposes release of DSK on his own recognizance. Vance’s office continued to explore facts concerning the victim, including her background and potential association with drug traffickers and money launderers.
It remains to be seen if Vance’s office will dismiss all charges against DSK and whether DSK’s accuser will be charged with perjury before the grand jury. What is clear, however, is that the New York County District Attorney’s Office has, in this case, as in prior rape cases, proceeded with scrupulous adherence to ethical and constitutional requirements.
Leonard Orland, a former member of the Connecticut Parole Board, is Oliver Ellsworth Professor of Law at the University of Connecticut School of Law.