By Jeff Roberts and Joseph Ax
NEW YORK, Aug 10 (Reuters) - A civil lawsuit brought by the hotel maid in the Dominique Strauss-Kahn case promises to introduce evidence from women who claimed to have suffered a similar fate, but it is far from certain that a jury would be allowed to hear such claims at trial.
In a lawsuit filed earlier this week, Nafissatou Diallo accused Strauss Kahn, 62, of waging a "violent and sadistic" attack on her in a luxury suite at the upscale Sofitel hotel in midtown Manhattan on May 14. She said she will introduce evidence at trial from women who allegedly were sexually assaulted by the former IMF chief in apartments and hotel rooms around the world and from co-workers whom he is alleged to have sexually coerced. The suit also cites a tabloid allegation that Strauss-Kahn made a sexually suggestive comment to an Air France flight attendant shortly after the alleged assault on Diallo.
Analysts say a civil judge is more likely to permit prior allegations of bad acts than a criminal judge, because the stakes are lower -- monetary damages, rather than prison time -- but the admissibility standard remains a high hurdle.
"It's very restrictive for obvious reasons, because otherwise you could just march in a bunch of people who say, 'This is a terrible guy,'" said David Golomb, a former president of the New York State Trial Lawyers Association.
Defense attorney Oscar Michelen agreed that Diallo will have a tough time convincing a judge to admit allegations that Strauss-Kahn has assaulted or coerced women in the past.
"A judge is going to have to analyze whether it proves anything - or is it just prejudicial to the defendant?" Michelen said.
In recent years, the rules governing the admissibility of prior sexual misconduct have evolved in certain jurisdictions. Under the Federal Rules of Civil Procedure, for instance, evidence of prior sexual assaults is admissible in both criminal and civil cases in federal courts.
According to Cardozo Law Professor Peter Tillers, several states have begun adopting rules that relax the evidentiary standards that govern what can be admitted in sexual assault cases.
New York, however, has not adopted the federal rules or a state evidentiary code. This means that the traditional rules of common law continue to govern cases like Strauss-Kahn's. Even if a judge deems prior acts relevant, Diallo's lawyers will need hard evidence of previous assaults, not simply allegations from other women.
"I think even a state court judge is going to be very concerned about unproven allegations. So what if two other women have claimed this? Have the claims been adjudicated?" Michelen said.
In an interview, Kenneth Thompson, who represents Diallo, said he believes the allegations about Strauss-Kahn's behavior with other women are admissible, but declined to elaborate on which specific instances he plans to introduce at trial. "We've had cases in the past where prior acts have been allowed in," he said.
The civil lawsuit comes at a crucial moment for the criminal investigation against Strauss-Kahn, as prosecutors continue to debate whether to move forward with the case despite concerns about Diallo's credibility.
Thompson has vowed that his client will have her day in court, even if prosecutors drop the criminal case. He would not elaborate on his legal strategy, but the lawsuit suggests he will seek to admit the allegations under one of the exceptions to the rule forbidding evidence of a defendant's propensity to commit similar acts.
"At trial, Ms. Diallo will introduce other crimes, wrong (sic) or acts to demonstrate Strauss-Kahn's motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident," the lawsuit says.
According to Michelen, these exceptions permit evidence of prior acts if they are used to show something other than the defendant's character. For example, if a defendant wears orange sneakers every time he is alleged to have assaulted a woman, and he had orange sneakers on during the incident in question, a judge is more likely to admit this evidence, Michelen said.
While Thompson said he expects the evidence to be allowed, he conceded that it is an open question "It's going to be totally up to the judge," he said. "We'll make our arguments, opposing counsel will make their arguments."
(Reporting of Jeff Roberts and Joseph Ax; Editing by Noeleen Walder)