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When there are large numbers of claims associated with a single product, they may be part of a mass tort. It basically means that an act of negligence on the part of an individual or company resulted in injuring many people. Many factors are considered when deciding if a claim should be part of a mass tort.
How, in questioning the hotel maid’s credibility, DSK’s supporters have intentionally conflated the question of whether a rape occurredwith the question of whether it can be proven – in a criminal trial – that a rape occurred. And how the civil lawsuit could be different.
The accuser of Dominique Strauss-Kahn this weekend gave interviews to major media outlets, telling her story in a bid to refocus attention on her allegations and convince District Attorney Cyrus Vance to prosecute DSK for his alleged crime.
In the past weeks, the former IMF head’s defense attorneys have trumpeted questions about whether DSK’s accuser lied on her asylum application in an ugly but predictable attempt to call her credibility into question.
While no one other than DSK and his accuser know with certainty whether what took place at the Sofitel was consensual or not, DSK’s defenders are acting as though the fact that his accuser may have lied before at some point in her life is dispositive of the question of whether or not she was raped.
But while DSK’s defense attorneys are using the opportunity to pressure D.A. Cyrus Vance not to prosecute their client, we should remember that any misrepresentations on the maid’s asylum application have exactly zero bearing on the question of whether or not she was sexually assaulted by the then-head of the International Monetary Fund. Those who suggest otherwise are engaging in a not-so-subtle game of blaming the victim.
Of course, these questions about the maid’s “past” will be used by DSK’s defense to help torpedo the prosecution by calling into question her credibility as a witness. That would be bad news for her and for the prosecution, but it might not be insurmountable. Again, however, the question of whether it can be proven in the criminal justice system that a violent assault took place is a different question than whether or not the assault occurred. In the feeding frenzy on the maid that has taken place in recent weeks in the pages of the New York Post and elsewhere, much of the media coverage has conflated these two questions.
Finally, it’s worth pointing out again that the standards of evidence required for a criminal prosecution, as opposed to a civil lawsuit, are different. If DSK’s lawyers can find enough dirt on the alleged victim to make her testimony seem less believable, that would obviously be a major difficulty for a civil case to overcome as well. But while Cyrus Vance’s team would need to provide proof beyond a reasonable doubt that DSK raped his accuser, the legal burden of proof required for a civil lawsuit is a preponderance of evidence – meaning that the alleged victim’s lawyers would need prove only that, based on the evidence, it seems more likely than not that the assault took place as described.
-Benedict P. Morelli and David S. Ratner
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