Dominique Strauss-Kahn, the French former managing director of the International Monetary Fund who was just released from criminal jeopardy when the Manhattan District Attorney’s Office dropped sexual assault charges against him on August 23rd, still faces the possibility of a civil damages award. As is well known, Strauss-Khan was accused by 33 year old Hotel Sofitel employee Nafissatou Diallo of forcing her to engage in oral sex when Ms. Diallo entered Strauss-Kahn’s suite to clean on May 14, 2011. Although the initial evidence against Strauss-Kahn seemed compelling, including the fact that Diallo had his semen on her clothing and he attempted to flee the United States soon after the encounter, further investigation by the Manhattan District Attorney’s Office post indictment resulted in major credibility questions as to the accuser. These included the fact that she lied about being gang raped in her native Guinea, lied on an asylum application when she first arrived in the United States, and was recorded speaking with a friend and mentioning Mr. Strauss-Kahn’s finances and stating that she “knew what [she] was doing.”
Earlier this month, as the criminal case appeared to be crumbling, Ms. Diallo went public with her allegations, appearing on major news programs and in national magazines. She filed a civil lawsuit in the Bronx County Supreme Court, alleging that Strauss-Kahn had sexually assaulted her and seeking unspecified money damages. If this case had been brought prior to November of 2003, when the New York Civil Practice Law & Rules was amended to disallow identification of the amount being sued for in lawsuits, it is likely that Diallo would be suing for multi-millions. Under the law presently, the defendant’s attorneys must submit a demand for the “ad damnum”, or amount being sued for, to glean what the alleged damages are.
There is a significant difference between the burden of proof that the prosecution must establish in a criminal case, known as “beyond a reasonable doubt”, and that the plaintiff’s attorney must prove in a civil case for money damages, which is “a preponderance of the evidence.” Beyond a reasonable doubt is defined as “proven to a moral certainty…the facts proven must, by virtue of their probative force, establish guilt…any doubt must not be fanciful or imagined but based on reason and arising from the evidence.” In contrast, a preponderance of the evidence literally means evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.” Obviously, a much easier burden to prove in the civil case.
Nonetheless, Ms. Diallo will have major difficulty overcoming the evidence of her fabrications in matters of major importance, including the asylum application, and even more damning, the false accounting of a sexual assault in Guinea, which could lead a jury to believe that she lied in this instance as well. Further, there is a jury instruction which would be give to jurors in the civil case if it were deliberating known as “Falsus in Uno”, which states: “If you find that a witness has willfully testified falsely as to any material fact…the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything.” One factor which works in Ms. Diallo’s favor if the case did proceed to a verdict is that in a criminal case, the 12 person jury must be unanimous in its verdict, whereas in a civil case, the 6 person jury does not have to be united—only five of the six jurors must agree.
There is also the issue of the venue of the case, as Bronx County jurors are the most favorable to plaintiffs of any the 62 counties in New York, with the possible close exception of Kings County jurors. Simply put, Bronx and Brooklyn jurors will likely be more receptive to a case in which an African American immigrant is suing a very wealthy and well represented French financier. The defense might consider a possible transfer of the case to the Federal Court, where the jury pool would not be drawn from the Bronx, but rather New York County, where jurors are substantially more conservative and would likely be favorable in their treatment of someone with Strauss-Kahn’s wealth. However, the down side for Strauss-Kahn in moving the case to federal Court might be his somewhat checkered past, in which he has been accused on numerous occasions in France of sexual assault, (and has a pending case against him now by a French journalist) and some of these allegations might be more likely to be received in evidence in federal Court than in state Court.
Another possibility is that as in the Kobe Bryant and the late Michael Jackson (twice) cases, the victim will receive a rather large monetary settlement and agree to discontinue all further proceedings. However, in the Bryant and Jackson cases, the settlement was made while the criminal proceedings were ongoing, so the scenario here is somewhat different now that the Manhattan D.A. has dropped all charges. We will keep monitoring developments in this fascinating case.
Contact the Westchester County Personal Injury Attorneys at the White Plains, New York Law Office Of Mark A. Siesel online or toll free at 888-761-7633 if you are injured in any type of accident, are the victim of medical malpractice, or suffer injury to a defective product or medication for a free initial consultation with an experienced trial attorney.