Wednesday, January 4, 2012

DSK vs THE MAID. A response to Chimamanda Ngozi Adichie


I love reading Ms Adichie. Few people can take her spot in my list of favourite living writers. I defended her talk ‘The Danger of A Single Story’ online when many fellow writers thought she was being superfluous and adding nothing new to the discourse.

Not unexpectedly I was excited to read her Newsweek Magazine piece about the rape case between DSK and Nafissatou Diallo that never was.

So this is what Ms. Adichie says: that she does not like the fact that Diallo the Maid couldn’t get her day in court because “the case was dismissed—not because the prosecutors were certain that DSK was innocent, but because Diallo was not a saint.”

I read through her article twice and found myself for the first time, struggling to find something to agree with. Then I read again and saw why.

Ms. Adichie begins the article on a dangerous note: I know women likeNafissatou Diallo. What does this mean I asked myself? Do all women like Diallo act alike, all innocent, all misunderstood? From this point the article began to descend into some sort of counter-stereotyping.

So she adds, “Diallo comes from a place where melodrama is not unusual, and often suggests truth as much as lies...And as an African immigrant who lied to get her green card, a certain carefulness, even caginess, about her past is necessary in order to preserve her present situation.”

I stopped to ask what the basis of this strong alternative explanation was, given with the force of fact. Is there some empirical evidence to suggest this? Or is it conjecture because she knows women like Diallo, who are West African like her, dark brown, like her? Does Adichie suggest that there is one truth applicable for all West African women in a certain social class and that she knows that truth? Is that not a single story? Is it perhaps presumptuous to so presume?

Adichie goes further to say, “we were told that because of these lies, a jury would not believe she was raped. Surely a reasonable jury would know that a woman who lies, even pathologically, can also be a victim of rape?”

Let us look at the issue of the lies. At this point three principles, all trite, come to mind. Two of them, principles of law, and one, a principle of equity, all of which are important in achieving justice in criminal trials. First is that in criminal trials, the burden of proof lies usually on the prosecution (there are minor exceptions). Second, the standard of proof in criminal trials is beyond reasonable doubt. Lastly, he who comes to equity, must come with clean hands.

Why did Diallo’s lies have the effect it did on her case? I need to say first that I disagree with Ms Adichie that it is an American thing. The same principle operates in Nigeria and indeed in most common law countries. Diallo lied about a rape in Guinea that never happened. Does this matter? Yes it does. It is a big deal. The question arises, in the absence of any concrete proof, why should the jury take just your word for it? For a person’s sole testimony to be used in a conviction, that person has to be trustworthy, otherwise we risk convicting innocent people. It is to check this that the defence is allowed in cross examination to go as far as the character of a sole prosecution witness, because in fact this is all we have. In other words, why should we believe you today, when you have lied about something similar in the past.

Adichie says, “It puzzles me that, to prosecute DSK for rape, the character of his alleged victim was considered relevant but his own character was not.”

To answer this you must see the case from all sides and not just from the point of view of the person alleging. According to the Justice Oputa in Godwin Josiah v The State[ (1985) 1NWLR (Pt 1) Pg 125, Paras, G – H], “...justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic - justice for the [person] accused of a heinous crime; justice for the victim... and finally justice for the society at large - the society whose social norms and values had been desecrated and broken by the criminal act complained of.

So if I am going about my legitimate business and some random fellow decides he wants to drag me into court, in spite of my past indiscretions, I am entitled to justice. The law protects me from being falsely accused and convicted on the basis of the sole testimony of one who is not trustworthy. In the absence of tangible evidence, trust is the only currency with which an accuser and alleged victim can trade. In effect the accuser says, I have no other witness to show I am a victim, but trust me, he did it. In this case, why can that trust not be questioned in the light of previous related acts?

Adichie goes on. “The American system does not require that he provide his side of the story, only that he convincingly poke holes in hers. But the systemshould require as much from him as from her.” [emphasis mine]

I find this comment strange and coming from I think, a lack of engagement with the basic principles of criminal justice. If DSK should be presumed innocent as Adichie admits, why should the system require as much from him as from her? As much from a person presumed innocent as from the accuser. Does that seem fair? That anyone can claim anything against me, drag me to court and saddle me with the burden of proving an innocence the law already presumes I have? Remember that the presumption is in favour, of the accused. The accused is presumed innocent. What further proof should that require? Again this requirement is more universal than American.

I think that Adichie has presented a sentimental argument not based on any fair principles that can be applied across the board. I agree that even a pathological liar deserves justice, but when that liar has lied about that for which she is asking justice she needs more proof than her word alone to get a conviction. It is unfortunate if really those events happened as she told them. She sabotaged her own case and did not come to equity with clean hands. No, I do not mean that she deserves what happened. No one deserves to be assaulted, however dirty their past. But the law needs to be blind to individual sentiments and apply justice across board.

To end I will comment on the rider of Adichie’s article: “The rape case against DSK was tossed—but would a jury have believed him over the victim?” concluding, prima facie that she IS a victim is concluding that DSK is guilty. This conclusion, though quite convenient, is sentimental and not the route to justice. Very simply in any criminal case, there are two potential victims even though on the face of it there may appear to be one victim. The person accusing and the person being accused. For if the person being accused is innocent, he is in fact a victim of an allegation which has the potential or harming him.

As a lawyer would I have gone ahead with the prosecution? Perhaps I would. But I would know what to expect. My only witness totally lacking in credibility. The introduction of reasonable doubt. And the total collapse of my case.

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