Two Cops, DSK, and DNA: Evidence and Experience in the Courtroom
For a while the alleged rape of a New York hotel maid by the now ex-managing director of the IMF dissolved not into the expected narrative of “he said, she said,” but instead into a question of what France versus the US do with their women. Such a story line reduced an act of sexual violence to a question of gender relations, flirtation, or privacy by comparing the US’s ostensibly stellar record of bringing its politicians to task (Spitzer and Clinton) versus France’s bad habit of turning a blind eye. In an Al Jazeera piece, Mayanthi Fernando and Gil Anidjar seem to have been the first to question the application of a narrative of sexual scandal to a case of sexual violence:
By continuing to cast DSK’s case as one of sex… we obscure the fact that the case at hand is not about sex (discreet or otherwise) but about power and violence. Like a number of similar cases (for there are comparisons to be made), it has to do with the behaviour of powerful men in powerful positions. It has to do, in other words, with politics as full spectral dominance.
Four months ago, the NYTimes ran this headline: “Thousands of Rape Kits Sit Untested for Decades, but Change Would Be Costly.” Soon after they dealt with this controversy, “Gang Rape Story Lacked Balance.” And this was still going on when DSK happened: “Jury to begin deliberating in New York police rape case.” Nonetheless, the NYTimes saw fit to ask a panel of experts this question: Are French Women More Tolerant?
It’s as difficult to know where to begin telling the narrative of the narrative as it’s obviously been to narrate the case itself. But I think we could begin by asking why DSK was more readily compared with Schwarzenegger and his love child than to the contemporaneous trial of two New York cops accused of rape (one for having actually raped and the other for having assisted). After all, both story lines involved men who wielded their power to commit sexual violence against women in vulnerable positions (one inebriated after a long night celebrating a job promotion, the other reportedly an African immigrant who was working as a maid in an NYC hotel). Again, Fernando and Anidjar’s article was the first I read to draw the comparison.
Rather than focus on DSK as a sex scandal or media trial, we should perhaps instead ask what questions the acquittal of the NY cops raises for DSK’s case. Because the French media [not to mention BHL — were he American he’d be a shock jock] has indeed gotten one thing wrong: trial by media is not the same as trial by jury. The public’s shocked reaction to the cops’ acquittal (including organized protests by various feminist groups) is testament to how divergent the media’s narrative was from that of the courtroom.
A few days ago the NYTimes finally did catch on that rape and sexual assault trials are notoriously difficult for the prosecution to win. Already DSK’s lawyers have indicated that they will argue that any sexual acts between him and the maid were consensual. So let’s take a quick look back to why the jury decided not to convict in the NY cops case. Here’s what one juror said:
“I did think that they might have had sex, but that doesn’t mean that they did have sex,” he said. “There is nothing to substantiate this. There’s no DNA, there’s no proof in any way that they had sex.”
Even more revealing was a great interview with Women’s eNews given by Melinda Hernandez, another juror who had initially voted to convict:
It all came down to the forensic evidence. There was none at all. No hair, no semen, no pubic hairs in the evidence collected from the apartment or in the rape kit collected at the hospital. There was a small red patch found on her cervix, but that could have been caused by several things. There was no solid proof from the evidence collected or the rape kit. Not even fingerprints. Not even fibers from police uniforms. Many pieces of material were taken from the apartment. But there were no fingerprints. There was nothing there.
All the evidence was collected by the NYPD internal affairs investigator and was taken to police crime lab. After it was examined there, then it was sent to the medical examiners lab.
Was there ever any question of police tampering of the evidence?
You can’t raise that kind of speculation. That’s why I think the system failed her big-time.
But why can’t you raise that kind of speculation at a trial? It’s the given duty of the jurors to judge the credibility of the plaintiff’s versus the defendant’s testimony. Why should the testimony of expert witnesses be exempt from similar considerations?
But more importantly, how does the assumption that corroborating medical evidence is necessary to convict (though–correct me if I’m wrong–I don’t think this is actually required by law) impact the prism through which other evidence is viewed and the way in which the narrative of sexual violence is itself constructed?
First it seems necessary to point out the obvious: DNA evidence does not an act of sexual violence make. Semen found on the maid’s shirt has been matched to DSK’s DNA, but “the defense is expected to pursue the issue of whether it is even physically possible for an unarmed man, who is not particularly physically imposing, to force a person to engage in oral sex,” reports the NYTimes. Which reminded me of something from Stephen Robertson’s historical article on the emergence of a medico-legal discourse in rape trials during the 19th century:
In 1823, in the first American treatise on medical jurisprudence, Theodoric Beck articulated what he identified as the general medical opinion on that issue: “I am strongly inclined to doubt the probability [that] a rape can be consummated on a grown female in good health and strength.”
In the 18th century, before doctors had established their competence to judge whether a woman had been raped, the body of the female victim was examined not by doctors but by a group of respectable, married women. As the medical profession began to develop and professionalize in the 19th century, doctors asserted their medical expertise in legal cases including rape trials. While judges throughout the 19th and 20th centuries frequently challenged the conclusions doctors drew from their medical evidence, juries — largely made up of middle-class men — increasingly placed their trust in doctors’ sworn testimony.
In Infancy and History: On the Destruction of Experience, Giorgio Agamben writes, “experience is incompatible with certainty, and once an experience has become measurable and certain, it immediately loses its authority.” Scientific verification displaces experience away from the individual onto instruments and numbers.
In her 1997 article evaluating the role that medical evidence has come to play in rape trials in Canada (which have many parallels to the United States), Georgina Feldberg wrote, “One clear force within the history of medico-legal reform was the goal of creating expert physicians who had the experience and skill to administer and interpret medical tests that would define the scientific fact of rape.”
The problem of course, is that while evidence might prove intimate contact or intercourse, there is no medical way to definitively prove consent or lack thereof. Historically, physical signs of violence have played better to juries (note the emphasis placed on the bruising of the victim’s cervix in the NY cops trial). But of course our definitions of both consensual sex and sexual violence have expanded: consensual sex can result in bruising, while the battering of a victim is not conditional for rape.
While lack of medical evidence casts doubt on the accuser’s claims and its presence may do little to lift the fog, Feldberg points out that the use of medical evidence opens up the pandora’s box of the victim’s sexual history, despite rape shield laws intended to place a victim’s sexual past off limits. Thus in the NY cops case, forensics didn’t find any traces of the accused cop’s DNA (despite the fact that he admitted to getting into bed with the woman, cuddling with her and kissing her shoulder). But forensics findings did open up questions about the DNA of three other men found on the woman’s sheets, while questions about the mechanics of penetration revealed the woman’s familiarity with various sexual positions. Of course ideally none of this would matter and courtroom reactions would not include “cringing, laughing or blushing like a fifth grader in reproductive health class.”
At the end, we’re left with a series of paradoxes. Testimony undermined by the absence of relevant medical evidence. Medical evidence that reveals decontextualized details from the accuser’s past. Medical evidence undermined by the question of experience itself: Was it consensual, was it not?
And so we come back to the question that DSK’s lawyers will want us to focus on: Is it physically possible for an older man of middling strength to force a woman to perform oral sex? At face value this seems to be a question of experience rather than medical evidence. Did the woman experience force?
Yet see how quickly a question of experience turns into a question of mechanics, of science, of experimentation and verification. Is it “even physically possible for an unarmed man, who is not particularly physically imposing, to force a person to engage in oral sex?” Can a rape “be consummated on a grown female in good health and strength?” Questions that expect experience to be generalizable rather than individual, and thus obfuscate issues of power, coercion, confusion, and fear.