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Dominque Strauss-Kahn dismissal

Much has been made of the dismissal of charges against former IMF chairman Dominque Strauss-Kahn. In this piece, Salon blogger Tracy Clark-Flory provides a sounding-board for “leading feminist activists” who argued, among other things, that the dismissal denied the accuser her day in court, that it sends a message to rapists to choose their victims wisely, and that the prosecution should have chosen to continue the prosecution, if its goal was “more than simply winning cases, but [also] reducing the rape rate.” Each of these assertions churns the stomach of any criminal defense attorney, and, hopefully, any adherent to the precepts underlying the Constitution.

First, the dismissal of a criminal complaint does not deny the accuser her day in court: a criminal prosecution is the state's opportunity to punish a person who commits an act that society has deemed to be criminal; it is not, as suggested in this assertion, the opportunity for an accuser to seek retribution. To the extent that the accuser was harmed, her avenue for seeking compensation for that harm, one which the accuser here is still pursuing, is a civil suit. So, contrary to the assertion of Jaclyn Friedman, quoted in the article, the dismissal of the criminal action has no effect on the accuser's so-called day in court.

Second, the assertion by Amanda Marcotte that prosecutors should have as a goal in commencing and continuing individual prosecutions to reduce the rape rate–presumably by making potential rapists “think twice” before committing their next rate–dangerously misapprehends the mechanism of the criminal justice system. While that system, and the fact of punishments for certain acts, is intended to and, in some cases, may have deterrent effect, to apply it to a prosecutor's individual charging decisions has two massive problems. First, a prosecutor is supposed to seek justice–not necessarily convictions–so to ask a prosecutor to consider the overarching social consequences of filing an individual charge will tend to take his or her focus away from his or her task. Second, and relatedly, such a decision–to proceed with a prosecution regardless of whether the prosecutor thinks that individual case is justified by the facts, would constitute a violation of the prosecutor's ethical obligations. Ms. Marcotte's assertion suggests that individual prosecutors should take on the task assigned by the several states' constitutions to their respective legislatures.

Finally, Ms. Marcotte's additional assertion, that the dismissal sends a message to rapists to choose vulnerable victims, shows a basic misunderstanding of the way the world works that can only be expected from so-called “ivory tower” academics, whose experiences are limited to what they have read in books. In my experiences dealing with people who have committed violent offenses, I have never encountered one who chose his victim on the basis of considerations about how easy it will be to mount a defense against allegations made by that person. It simply boggles the mind to think that someone would even suggest that a person who is about to engage in an act as violent and irrational as a rape would stop to consider whether the victim would make a good witness. It's dealing with thinking like this that made college so painful for me.

Now, it's not to say that the DSK prosecution fiasco doesn't point to problems with the criminal justice system. As one of the commentators to the article noted, it is unlikely that, had the socio-economic roles been reversed, the prosecution would have engaged in the same thoughtful re-weighing of their case: they would have just powered through, knowing that an overworked public defender would be substantially less able to mount the kind of defense that could point out all the deficiencies. And, as another commentator noted, the media exposure of this case surely weighed heavily on the DA's decision, as nobody wants to be handed such a public, humiliating loss as it was becoming evident would occur here. So yes, certainly, this case shines a light on class problems and the effect of the media on justice, but I find it absurd for the “feminist activists” to suggest that the dismissal of these charges sets back the fight against violence upon women.

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Josh M. Solberg

Joshua M. Solberg possesses the keen analytical insight and attention to detail required of a successful Law & Motions practitioner. His understanding of the intricacies of federal and state Constitutional and criminal law, his tireless devotion to research and his ability to recognize winning issues make him an invaluable asset for those represented by The Criminal Defense Group.

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