No Immunity for Strauss-Kahn Against Civil Sex Assault Claims

     (CN) – A judge on Tuesday ridiculed the legal “Hail Mary” pass Dominique Strauss-Kahn tossed against a civil lawsuit filed by the hotel maid who claims he sexually assaulted her last year.
     Criminal rape charges filed almost exactly one year ago dashed the political hopes of the former head of the International Monetary Fund who had been a frontrunner in the French presidential elections. He was arraigned in New York Criminal Court for allegedly attempting to rape a maid at the Sofitel Hotel in Midtown Manhattan.
     “Few are unfamiliar with the highly publicized events at New York City’s Sofitel Hotel on May 14, 2011 involving claims by Nafissatou Diallo, a chambermaid at the hotel, that she was sexually assaulted by Dominique Strauss-Kahn, then managing director of the IMF, who has denied Ms. Diallo’s allegations but admitted to a consensual sexual encounter with her,” Bronx County Supreme Court Judge Douglas McKeon wrote.
     Months later, prosecutors dismissed the charges later as apparent inconsistencies surfaced in Diallo’s account. Prosecutors at the time said they were not confident bringing charges under the reasonable doubt standard.
     Diallo filed a civil suit weeks before the dismissal, leading Strauss-Kahn to claim immunity.
     “Believing that he was immune from the laws of this country, defendant Strauss-Kahn intentionally, brutally and violently sexually assaulted Ms. Diallo and in the process humiliated, degraded, violated and robbed Ms. Diallo of her dignity as a woman,” her complaint said.
     In refusing to dismiss the case Tuesday, Judge McKeon called Strauss-Kahn’s maneuver “his own version of a ‘Hail Mary’ pass by asserting that, once he was arrested and confined to a New York home as a condition of bail, he became a beneficiary of Article 39 of the Vienna Convention on Diplomatic Relations.”
     That law affords immunity to people “with respect to acts performed by such a person in the exercise of his functions as a member of the mission.”
     McKeon said Strauss-Kahn does not qualify because he was “clearly” not the member of a mission.
     “He was not even in the employ of the IMF when the civil action commenced,” the decision states.
     The law that Strauss-Kahn cited is meant “to protect members of a mission whose diplomatic tour has ended but whose return home has been delayed.”
     “As the expression goes, Mr. Strauss-Kahn ‘up and quit’ months before service was effectuated in this action,” McKeon added. “He was neither an employee of the IMF, a diplomatic envoy or diplomatic agent let alone a member of a diplomatic corps after May 18, 2011. Thus Mr. Strauss-Kahn enjoyed no immunity other than residual immunity for pre-resignation acts in furtherance of the business of the IMF after the date of his resignation.”
     The judge also noted that Strauss-Kahn could have claimed immunity earlier. “If he’s correct (and the IMF didn’t ultimately waive the immunity), the need for a criminal prosecution would have been obviated, with little likelihood of a civil action,” he wrote. “But his explanation for not raising immunity during the criminal proceedings, conveyed to this court by his esteemed counsel during oral argument, concerned his desire to clear his name. This court has no reason to question his motives; however, Mr. Strauss-Kahn’s decision to deliberately forebear from asserting immunities should not, as a matter of customary international law or fundamental fairness, be used to prevent another from exercising legal rights otherwise available.”
     The final line of the decision alludes to the attacks on Diallo, who previously sued the New York Post for suggesting she was a prostitute.
     “In other words, Mr. Strauss-Kahn cannot eschew immunity in an effort to clear his name only to embrace it now in an effort to deny Ms. Diallo the opportunity to clear hers,” the decision states.
     McKeon’s decision opened with a quotation he attributed to a Japanese proverb: “The reputation of a thousand years may be determined by the conduct of one hour.”
     The quotation also appeared in the IMF’s 2011 Annual Report, according to the ruling.
     The decision also discusses the 1944 Bretton Woods agreement, which established in the IMF toward the end of World War II.
     Parsing the history and text of the Articles of Agreement, the judge concluded that they do not afford Strauss-Kahn the immunity he claimed.
     Though the Special Agencies Convention do seem to provide Strauss-Kahn with absolute immunity, “a specialized agency, under the express language of the Specialized Agencies Convention, can opt out of the immunity provisions, as the IMF clearly did,” McKeon wrote.
     U.S. law affords limited immunity to the personnel of international organizations, according to the decision.
     “The United States of America, through its political processes can make laws, ratify treaties or issue judicial pronouncements which require a non-citizen employee of a specialized agency, here on our soil as part of the fabric of international governance, to behave, in their private conduct, in a lawful way failing which to be answerable in courts of law or other tribunals under the same standards as their next door American neighbors,” McKeon wrote.
     “At a time when issues concerning human rights significantly shape today’s international law, customary or otherwise, it is hardly an assault on long standing principles of comity among nations to require those working in this country to respect our laws as Americans elsewhere must respect theirs.”

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