The worldwide media has seen before high profile criminal cases involving wealthy public figures followed by civil suits brought by the complainants. OJ Simpson, former American footballer, was acquitted of murder in a criminal case but, a few years later, was liable to pay extensive damages to the families of his victims in a successful wrongful death claim. After rape charges brought against basketball star Kobe Bryant were dropped by prosecutors, the complainant brought a civil suit and the case was settled out of court. Similar cases have been reported in the UK. It was, therefore, not a great surprise when Nafissatou Diallo initiated a civil claim for unspecified damages against Dominique Strauss-Kahn, former head of the International Monetary Fund, who she alleges sexually assaulted her in his suite at her employer’s Manhattan hotel (see, eg, Telegraph, Guardian, Financial Times, Time (US)). What is surprising is the timing of her case: she has filed the civil suit while a criminal investigation is still underway. Prosecutors are deciding whether or not to proceed with the case, following doubts as to Ms Diallo’s credibility: revelations relating to her financial status, associations with alleged criminals, an asylum application and previous rape complaint have been reported in the media.
It is clear why she is bringing the claim. As the OJ Simpson and Kobe Bryant cases illustrate, civil suits can be successful even where a criminal case has not proceeded to trial or the accused has been acquitted. This is largely down to the fact that there is a lower standard of proof required in civil courts than in criminal courts. In civil claims claimants simply have to prove that it is more likely than not that the defendant is responsible, rather than the criminal standard of proving the defendant’s guilt beyond reasonable doubt. Clearly, if Strauss-Kahn is criminally convicted of sexually assaulting Ms Diallo, then it is extremely likely a civil claim would be successful, and relatively easy to pursue. However, even if there is no conviction or trial then this would not necessarily defeat a civil claim. So, regardless of the outcome of criminal case, Ms Diallo may still be awarded compensation for the harm she has been caused.
What is less clear is why she is bringing the case now. According to US lawyer Tom A Pavlinic, who specialises in sexual abuse cases, initiating it at this point in time could weaken her case. A key argument of Strauss-Kahn’s defence is that she is making this allegation for financial gain. Bringing this claim, let alone now, seems to provide evidence supporting this. This point has not been lost on Mr Strauss-Kahn’s lawyers’ who are already arguing that: ‘we have maintained from the beginning that the motivation of Mr Thompson and his client was to make money … The filing of this [civil] lawsuit ends any doubt on that question’. Nevertheless, legal analyst Andrew Cohen takes a different position, and suggests the civil suit is well timed. He says that the likelihood is that an out of court settlement will be reached, which would avoid the financial and emotional costs of a civil trial. Moreover, if her criminal complaint fails and Mr Strauss-Kahn returns to France, international lawyers say that that he could still be served with a civil complaint – but Ms Diallo may find it difficult to recover damages from him without interventions by a French court.
However, by focusing on the timing of her claim commentators so far have missed an important point. There are two main wider difficulties revealed in the response to Ms Diallo’s claim: negative perceptions of rape complainants – underpinned by myths as to what constitutes ‘real’ rape and how victims react – and the suspicion of financially motivated civil claimants, exaggerating acts and injuries to seek large payouts in countries such as the US and UK (the so-called ‘compensation culture’). In light of these views, Ms Diallo’s credibility is doubly damaged – first as a rape complainant and second as a claimant to a civil case. This is problematic.
It is important that we recognise the financial costs of crime can be high for victims, and they have good reasons to seek compensation for physical, psychological and other harms and consequential losses that they have been caused. There are, in many countries including the US and the UK, criminal injuries compensation schemes. However, these typically offer tokenistic awards rather than full compensation, and crucially are paid from public funds rather than by the defendant. Thus the suggestion that Ms Diallo’s claim is evidence of her guilt, her lack of credibility misses the point as to why she is bringing the claim. Moreover, it only bites if a truthful complainant would have been unlikely to have done the same thing. But I would doubt this, especially if the accused is particularly lucrative. Certainly, some UK cases in which a civil claim for rape have been brought are indicative of this. For example, in Lawson v Executor of the Estate of Dawes (Deceased)  EWHC 2865, the claimant’s successful civil suit for rape, sexual assault and false imprisonment was initiated after the accused business-tycoon died, leaving a substantial estate. She had made a criminal complaint but it seemed that no prosecution was going to be pursued.
Furthermore, there are an increasing number of civil claims for rape and other sexual assaults being brought in the US and Canada, and a few have been brought in the UK (see my discussion in the UK context here). This may be because of the failures in the criminal justice system. Conviction rates for rape and sexual assault are notoriously low; complainants are often met with hostility and disbelief in a system which marginalises their interests, and their experiences are often likened to a ‘second rape’. Many victims find that the criminal process, retribution and punishment do not completely satisfy their needs or ideas of justice, and there is evidence that some victims are going down alternative or additional routes to seek other forms of justice – for example, the civil law and restorative justice (see Clare McGlynn (also re-posted on this blog)). In such cases there should be less suspicion of and more support for victims.