NEW YORK, July 11 (Reuters) - The question has floated
tantalizingly in the background for nearly two months, ever
since New York City police arrested Dominique Strauss-Kahn on
charges of sexually assaulting a hotel maid: Would his accuser
pursue her own civil suit against him?
The answer took on renewed relevance after serious doubts
about the woman's credibility pushed the criminal case against
the former International Monetary Fund director to the edge of
collapse earlier this month.
Civil litigators say the accuser, whose account of what
happened has remained steadfast, would still have viable civil
claims against Strauss-Kahn even if the criminal charges
against him are dismissed. But any judgment against him would
prove difficult to enforce if the prosecution ends and he
returns home to Paris.
"A civil case could certainly still succeed on the merits,"
said Meg Garvin, the executive director of the National Crime
Victim Law Institute at Lewis & Clark University Law School in
There is no shortage of examples where civil lawsuits
proceeded after criminal prosecutions of the same incidents
failed. O.J. Simpson, the former football player charged with
killing his ex-wife and her friend, was acquitted in 1995 but
was later found liable in a wrongful-death civil suit brought
by the victims' families and ordered to pay more than $30
million in damages.
In 2004, prosecutors dropped rape charges against Kobe
Bryant, the basketball star, when his accuser refused to
testify, but she filed a lawsuit against him and eventually
settled the case out of court for an unspecified amount of
The lawyers for Strauss-Kahn's accuser have said they are
not considering a lawsuit at this time and did not respond to
requests for comment last week.
BURDEN OF PROOF
One of the most significant differences between criminal
and civil trials is the burden of proof required to prevail.
In a criminal case, where a guilty verdict can result in
imprisonment, prosecutors must prove the defendant's guilt
beyond reasonable doubt, the law's strictest standard.
In civil cases, by contrast, where the loser is liable for
money damages, the plaintiff can prevail by showing that the
alleged acts occurred by a "preponderance of the evidence" --
essentially, that it was more likely than not that the
defendant was responsible.
This distinction can be particularly appealing to a witness
who, like Strauss-Kahn's accuser, has credibility problems.
"There's nothing from what I've heard about the alleged
problems with the case that would make me immediately shy
away," said John Clune, the lawyer who represented the accuser
in the Bryant case.
Unlike in a criminal case, where a jury may not draw any
conclusions from a defendant's decision not to testify, civil
defendants typically must give their side during depositions
and at trial. There is no Fifth Amendment protection against
self-incrimination, and if a defendant refuses to answer, the
jury is permitted to make inferences from that refusal.
In Strauss-Kahn's case, a civil suit could shift the focus
from the accuser's credibility to his own record of honesty,
given the allegations about his past infidelities.
Like many civil defendants faced with that option,
Strauss-Kahn might agree to settle out of court rather than
expose himself to the scrutiny of a trial and the burden of
testifying about what happened in the hotel room, not to
mention in past incidents with other women.
"This is exactly why civil defendants settle all the time,"
said Julie Suk, a professor at Benjamin Cardozo School of Law.
"They may not think there's a winnable case against them, but
it's often much more costly, both in terms of lawyer fees and
personal, psychic cost."
But given Strauss-Kahn's wealth, his accuser still risks
being perceived as having purely financial motives in going
after him, a possibility that only increased after news outlets
reported she had called an incarcerated friend shortly after
the alleged assault and mentioned Strauss-Kahn's money.
RETURN TO FRANCE
A larger concern for the woman is if the criminal charges
are dropped and Strauss-Kahn heads home to France.
In that case, international law experts say, a civil
lawsuit could still go ahead -- but collecting damages from him
in France might prove difficult.
While the U.S. and France do not have an extradition
treaty, which would prevent Strauss-Kahn from being forcibly
returned here for a criminal trial, the two countries have
treaties that would probably ensure that Strauss-Kahn could be
served with a civil complaint and a subpoena to testify,
And if Strauss-Kahn chose not to appear? A New York court
could enter a default judgment against him -- in other words,
his accuser would win simply because he didn't show up. But
experts said that collecting damages from Strauss-Kahn would
likely require the cooperation of a French court.
Paul Cohen, an attorney who specializes in international
law for Thompson & Knight in New York, called the chances of
extracting money from Strauss-Kahn if he is back in France
"It has nothing at all to do with the merits -- it's all to
do with the geography and the jurisdictional issues that come
with it," he said. "The French courts may not appreciate a
civil complaint like this that is in effect a proxy for
(Reporting by Joseph Ax)
(An earlier version of this story did not identify Julie
Suk's affiliation. She is a professor at Benjamin Cardozo
School of Law.)