New York: The question has floated in the background for nearly two months, ever since police arrested Dominique Strauss-Kahn on charges of sexually assaulting a New York hotel maid: Would his accuser pursue a civil suit against him?
The answer has changed little since serious doubts about the woman's credibility put in jeopardy the criminal case against the former International Monetary Fund chief.
A successful civil case could bring a multimillion-dollar judgment against Strauss-Kahn, if a jury finds his accuser's story persuasive.
Civil litigators say the accuser would still have viable civil claims against Strauss-Kahn even if criminal charges against him are dismissed. But any judgment against him would prove difficult to enforce if the prosecution ends and he returns home to France.
"A civil case could certainly still succeed on the merits," said Meg Garvin, the executive director of the National Crime Victim Law Institute at Lewis & Clark University Law School in Oregon.
Civil lawsuits do proceed after criminal prosecutions fail. The former American football player O.J. Simpson, charged with killing his ex-wife and her friend, was acquitted in 1995 but later found liable in a wrongful-death civil suit brought by the victims' families and ordered to pay more than $30 million in damages.
In 2004, prosecutors dropped rape charges against Kobe Bryant, the basketball star, when his accuser refused to testify, but she filed a lawsuit against him and settled the case out of court for an unspecified amount.
The lawyers for the accuser in the Strauss-Kahn case have said they are not considering a lawsuit and did not respond to requests for comment.
Burden of proof
Criminal and civil trials have significantly different burdens of proof required to prevail.
In a criminal case, where a guilty verdict can result in imprisonment, prosecutors must prove the defendant's guilt beyond reasonable doubt, the law's strictest standard.
In civil cases, where the loser is liable for money damages, the standard is a "preponderance of the evidence" -- essentially, that it was more likely than not that the defendant was responsible.
This distinction can be particularly appealing to a witness who, like Strauss-Kahn's accuser, has credibility problems.
Prosecutors revealed she had told authorities numerous lies, including fabricating a story about being gang-raped in Guinea in order to gain U.S. asylum. She also changed details of her story about what happened after her encounter with Strauss-Kahn in his luxury hotel suite, though her account about what took place in the room has remained steadfast.
"There's nothing from what I've heard about the alleged problems with the case that would make me immediately shy away," said John Clune, the lawyer who represented the accuser in the Bryant case.
Unlike in a criminal case, where a jury may not draw any conclusions from a defendant's decision not to testify, civil defendants typically must give their side during depositions and at trial. There is no Fifth Amendment protection against self-incrimination, and if a defendant refuses to answer, the jury is permitted to make inferences from that refusal.
In Strauss-Kahn's case, a civil suit could shift the focus from her credibility to his own record of honesty, given reports about his past infidelities.
"This is exactly why civil defendants settle all the time," said Julie Suk, a professor at Cardozo School of Law. "They may not think there's a winnable case against them, but it's often much more costly, both in terms of lawyer fees and personal, psychic cost."
Given Strauss-Kahn's wealth, his accuser still risks being perceived as having financial motives in going after him.
According to the woman's lawyers, prosecutors said they turned up a recorded conversation between her and a man detained in an Arizona jail in which she said "words to the effect" that "this guy has a lot of money. I know what I am doing."
Return to France
If criminal charges are dropped and Strauss-Kahn heads home to France, collecting damages from him might prove difficult.
While the United States and France do not have an extradition treaty, which would prevent Strauss-Kahn from being forcibly returned here for a criminal trial, the two countries have treaties that would probably ensure that he could be served with a civil complaint and a subpoena to testify, international law experts say.
If Strauss-Kahn chose not to appear, a New York court could enter a judgment against him. But collecting damages would likely require the cooperation of a French court.
Paul Cohen, an attorney who specializes in international law for Thompson & Knight in New York, called the chances of extracting money from Strauss-Kahn if he is back in France "extraordinarily low."
"It has nothing at all to do with the merits -- it's all to do with the geography and the jurisdictional issues that come with it," he said. "The French courts may not appreciate a civil complaint like this that is in effect a proxy for criminal prosecution."
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