Reactions to the Dominique Strauss-Kahn spectacle have been starkly different on the two sides of the Atlantic, and self-congratulations abound. Although national amour-propre makes sense for both the United States and France in this scandal involving the former head of the International Monetary Fund, each nation would do better to look through the eyes of the other.
The United States is justly proud that rich and poor alike stand equal before the law. Americans — really, American feminists — should congratulate themselves on a genuine revolution in the treatment of rape victims. Not much more than 20 years ago, the charges of rape victims — when they were heard at all — were presumed to be lies, grounded in shame at consensual sexual encounters, or revenge. Now, as the stunning speed of Strauss-Kahn’s arrest makes clear, an African immigrant worker claiming rape in a luxury hotel is rightly presumed to be as credible as a rich tourist claiming a mugging in the park. On their side, the French can point to a system of criminal justice that avoids a media circus legitimized in the name of “transparency” and that, by and large, treats even the convicted with an appreciation of their humanity lacking in the overcrowded, increasingly privatized warehouses of dying souls that are U.S. prisons.
Certainly, the triumphant police trophy display of a rich white man — a Frenchman, no less — before an international gaggle of media should not blind Americans to the flaws of the U.S. justice system. I know from teaching criminal law how surprised even educated Americans are to learn of incarceration rates six to 10 times higher than Europe’s. And while the elimination of a purely discretionary system of sentencing has meant somewhat greater racial equality in jail time for similar offenses, the use of prison as the principal tool to address drug use has given the U.S. one of the most racially skewed prison populations in the world. As Harvard sociologist Bruce Western has shown in studies, a young black man is more likely to go to prison than college or the military, roughly eight times the rate of whites.
The humiliating perp walk, the media circus, the charade of the citizen’s bulwark of grand jury indictment (90% of prosecution targets are indicted), the trial contest between teams of lawyers — this is how the telegenic surface of the American criminal justice system provides an outlet for resentment and masks mass injustice, not to mention delivering prurient titillation. Let us not confuse a liberally dispersed degradation with an homage to equality. Even the spectacle of a trial itself is a rarity, since the vast majority of criminal cases in the U.S. are settled instead in a plea bargain, between prosecutors who wield nearly total discretion and thinly stretched public defense lawyers.
France’s concern for the accused hearkens to the noble principle of Article 6 of the 1789 Declaration of the Rights of Man, which guarantees all citizens equality before the law, “eligible to all dignities.” The idea of extending a concept of dignity to all humanity is one of the great contributions of the Enlightenment, however uneven its examples in reality. If dignity has flowered late in the French penal system, it still has flowered. As Yale legal historian James Whitman has argued, the universalization of the penal treatment once reserved for aristocrats marks the great difference between contemporary European penal systems and the American system, which instead has seen the universalization of the treatment previously reserved for plantation slaves.
But the Strauss-Kahn case makes clear that a commitment to dignity, even as it assumes an egalitarian face, makes room for an inegalitarian allowance for les dignités as well. Whatever the truth to this particular charge, it has been clear to many in French politics and media that his behavior would never have been countenanced were he not an insider as well as a genuinely brilliant politician and economist, committed to using the tools of international finance to improve the lives of the poor. The trivialization of his past thuggish behavior as “seduction” and “loving women” marks the dirty if open secret of French politics: an elite tolerance for corruption and misbehavior that is nearly as much an outlier among developed nations as the American taste for prison farms as social policy.
The Strauss-Kahn story will leave many casualties in its wake, not just victims of rape and harassment (or, if the conspiracy theories are right, an innocent man set up for a fall), but also those who will suffer if the IMF’s turn toward increasingly progressive policies fail. But perhaps we can take the occasion to look at some hard truths about the sins of our systems, not just our politicians.
By Christopher Kutz, professor of law at UC Berkeley and a visiting professor at the Sciences Po university in Paris.