The DSK case and women’s access to justice: the fallacy of the ‘perfect victim’

Dropping the DSK case on the grounds of the accuser’s credibility reinforced the message that women must have flawless pasts if they hope to seek justice after a sexual assault, a message that must be countered if we hope to fight sexual violence.

The decision by the New York District Attorney’s office to drop the high profile rape case against Dominique Strauss-Kahn is a major setback for those fighting to encourage women to step forward to report and press charges after incidents of sexual assault.

Whether or not DSK was guilty or falsely accused is not the issue – because we will never have the chance to know. DSK should have had to wait until his day in court, to face the allegations made against him and have his character, and have his past behavior, questioned; the accuser too would have been cross examined and questioned about the allegations.  However, the decision to drop the case before it reached court was based entirely on conclusions drawn by prosecutors about the accuser’s credibility, and it is in this decision that we see the deep-seated views many have about who can and can’t be victims of rape.

The media frenzy around this particular case has highlighted an issue that is all too real for the estimated one in five women who are affected by sexual assault in their lifetimes.  In addition to the emotional veracity of her responses and the consistency of her memory of the event, the accuser’s past relationships, religious adherence, associates, and even, in this case, her immigration history become part of the decision of prosecutors in taking the case forward.  In other words, DSK’s accuser was put on trial first.  

This is common in cases of sexual assault, but much rarer in other prosecutions.  When a robbery is reported, one can’t imagine the police waiting to investigate until they have established whether your past boyfriends have ever been in trouble with the law, or whether you’ve ever lied on an insurance application form.

As a result of the way this prosecutorial discretion is applied, women who have had hard, complicated pasts, and experiences that they are ashamed of and would rather not disclose, are more likely to be considered non-credible, and therefore are less likely to have their rape cases pursued.

So what does this tell us as a society? First, it reinforces the outdated idea that rape is somehow a crime against virtue and honour, rather than against bodily integrity: the corollary being that there is no crime unless the victim’s virtue, rather than the assault, can be established beyond doubt. Second, it indicates to those so inclined that it is okay, or at least less risky, to sexually assault women who are from vulnerable or disadvantaged backgrounds or have had a complicated past.  Finally, it will no doubt discourage other women in similar situations to come forward.  And it is this last effect that damages not only the individuals involved, but also undermines women’s already uncertain ability to access justice.

UN Women’s recent report, Progress of the World’s Women: In Pursuit of Justice shows that for women to access justice and to achieve their rights, the crimes that affect them must be taken seriously. Data on sexual violence and robbery, for example, show the extent of the problems of under-reporting and attrition. Across 57 countries, on average 10 percent of women say they have experienced sexual assault, but only 11 percent of them reported it. By contrast, the incidence rate of robbery is on average 8 percent, but the reporting rate is 38 percent. Low reporting rates for rape may result in part from a lack of confidence among victims that a case when brought will be fully prosecuted. 

An important part of increasing women’s access to justice is cultivating the belief in people that the justice system will not itself be used against accusers.  It is not enough to have sexual assault laws in place, but they must be implemented in a way that itself does not compound the harm. Unless we protect against this, the justice system has failed.

With so much media attention and rumor flying around, we will never know what happened between DSK and his accuser in that hotel room, and by dropping the charges against DSK the New York Prosecutor has missed an opportunity for both sides to be heard. But without a doubt, the victim of this whole affair has been the idea at the very foundation of justice system:  that everyone, regardless of the gender, background or status, can turn to the justice system to adjudicate their grievances.  A message that many of the world’s women do not need to hear twice.

 

The author is writing here in a personal capacity.

 

About the author

Caitlin Boyce is a human rights lawyer, with a specialization in women’s rights.  She has worked for the Australian Human Rights Commission, the Australian Mission to the United Nations, in private legal practice, and for several Australian and international NGOs including the American Civil Liberties Union in New York.  She currently works for UN Women on women’s access to justice issues.