The Strauss-Kahn Accuser’s Defamation Suit Against the New York Post: As a Matter of Strategy, Should It Have Been Filed Now, Later, or Never?

Posted in: Criminal Law

As readers will likely know, International Monetary Fund head Dominique Strauss-Kahn was arrested this May for an alleged sexual assault upon a housekeeper at the Sofitel hotel in New York, where he was staying as a guest.  Since then, however, serious doubt has been cast upon the housekeeper’s allegations.

Indeed, on June 30, The New York Times reported that the case against Strauss-Kahn was “on the verge of collapse” because of problems with the accuser’s credibility. According to the Times, defense investigators raised serious issues on this score, and law-enforcement sources said that the accuser had repeatedly lied to law-enforcement personnel.

Even worse, some of the alleged lies occurred in official contexts. Specifically, the accuser is claimed, in other news accounts, to have possibly lied in her grand jury testimony, and the Times reported that she may have lied on her asylum application when she immigrated to the United States.

The fact that law-enforcement sources reportedly said that they encountered lies from the accuser is especially damning.  The defense could, in theory, be making mountains out of molehills when it comes to credibility issues regarding the accuser.  Their job, after all, is to zealously defend Strauss-Kahn.  But we can be pretty confident that the prosecution is not overstating the problems with its own case (unless, perhaps, it’s preparing the public for a possible future decision to drop the case entirely).

On July 1, the judge overseeing the case, Michael J. Obus, released Strauss-Kahn from house arrest.

Then, on July 2, the New York Post published an article entitled “Maid cleaning up as ‘hooker.’”  This became just one of a series of Post articles – chronicled in the accuser’s civil complaint—that repeated the allegation that the accuser is a prostitute.

The publication of multiple stories attacking the accuser may seem like “piling on” by the Post.  However,  it’s worth noting that the Post had also gone after Strauss-Kahn aggressively, with multiple stories, in the early days when the accuser’s story seemed highly credible.

On July 5, the accuser sued the Post for libel based on its claims that she is a prostitute.

The libel suit will very likely follow on the heels of the criminal trial—that is, if criminal charges are not dropped in the interim.

That sequence—with the criminal trial preceding the libel suit—would be the fairest one.  If the libel case came first, then Strauss-Kahn, a likely witness in that case, might invoke his Fifth Amendment right not to incriminate himself.  Yet, the Post might want Strauss-Kahn’s testimony (if he will give it) that the encounter with the housekeeper was consensual and paid, as one way for the paper to substantiate the truthfulness of its headline.

In this column, I’ll consider some of the strategic issues relating to the libel suit.  Whenever criminal and civil actions run in parallel, as they do here, the actions inevitably influence each other, and strategic questions about timing tend to arise.

The Strategic Reasons for the Accuser to Have Filed Her Libel Suit Now

Under New York law, the accuser has one year from the publication of the alleged libel to file her suit.  However, there was one obvious reason for her to file now:  Arguably, had she not filed the suit, some New Yorkers might well have inferred that the Post’s claims that she was a prostitute were true.

Of course, the accuser could have simply issued a strongly worded denial to the press, instead of filing suit.  But by filing suit, one could argue that she is stating in the strongest possible way that what the Post has said about her is untrue.

Moreover, the accuser must have been told by her attorneys that the law is in her favor.  The law has long held that a claim that a woman is unchaste is extremely serious, imposed more plaintiff-friendly legal standards when such a claim is made, and thus increased the plaintiff’s chance of prevailing.

By suing the Post, the accuser is also, in a way, declaring herself an everywoman.  Surely, the average woman, seeing false claims in a newspaper that she is a prostitute, would be absolutely horrified, and would want to sue as soon as she possibly could.

Thus, by filing the suit very quickly, the accuser provided some reassurance to the public that she is like us, an ordinary person, not the person—a lying whore with underworld connections—whom the Post has portrayed her to be.

The accuser and her attorneys may also believe that—now that the libel suit has been filed—the Post may rein in its claims that the accuser is a prostitute.  But if so, that may be a false hope.  For better or worse, the Post’s coverage of this story has never been cautious.

Indeed, the accuser’s decision to go on the offensive may backfire—causing the Post to redouble its efforts to try to show that its claims are, in fact, true.  And once the defamation case begins in earnest, the Post, as the defendant, may be able to use the compulsory process of civil discovery to go beyond what it was able to do with reportage alone.

The Strategic Reasons for the Accuser Not to Have Filed the Libel Suit Now

What about the reasons for the accuser to have waited before filing suit?  Here are a few:

As noted above, one reason to file the defamation suit now is that it is arguably what an innocent person would do—take to the courts to clear her name.

But to some observers, the complaint won’t seem like what an innocent person would do; it will seem like what a greedy person would do.

Surely, a jury whose members believed that the accuser had been falsely labeled a prostitute would likely award her a large sum.  So now, the defense in the criminal case can argue that for the accuser, this dispute is about money, not simply about justice.

Granted, the statute of limitations for the defamation claim at issue here is not lengthy—so it might have been inevitable that the defamation suit would have to be filed before the criminal trial was underway.

Still, it might have looked better if the accuser had waited until the last possible moment, under the statute of limitations, to sue the Post for libel, while meanwhile issuing adamant denials of each Post story that repeated the claim that she is a prostitute.

Under this approach, the accuser would have looked reluctant—not eager—to file her defamation suit.   And, she could have argued that she had given the Post every opportunity to correct its view of her with additional reportage, in the interim time between when its stories were written, and when she filed her complaint.

The Argument for Not Filing the Defamation Case At All

In the end, I think a strong case can be made that it was a mistake to file the defamation claim at all.  It looks very bad, in my view, that the accuser did not target the Post stories that accuse her of lying and of associating with criminals, but instead focused exclusively on the stories that said she was a prostitute.

Lawyers may understand this approach—which may be based on the special legal rules for accusations of unchastity—but ordinary people will not.  And the defense in the criminal trial will likely score points by pointing out that, although the accuser complained of being falsely called a prostitute, she did not sue upon the Post’s allegations that she is also a liar (and that she runs with a criminal element).

The fundamental problem is this:  If she’s unwilling to challenge those who call her a liar in her defamation complaint, then how can the juries in her criminal case, or in her defamation case, be asked to trust her testimony?

In sum, this case is an example of how difficult it can be—and how much strategy is involved—when civil litigation and criminal cases succeed each other, or even potentially overlap.  It will be interesting to watch the fates of both the potential criminal case, and the defamation case, in the coming months.

Posted in: Criminal Law