The collapse of Nafissatou Diallo’s criminal charges against former IMF chief Dominique Strauss-Kahn may present a disturbing precedent, leading many to view asylum-seekers as unreliable court witnesses.
Diallo, a West African immigrant, is said to have serially lied about the circumstances of her 2003 application for asylum, and also about the details of her May 14, 2011 sexual encounter with Strauss-Kahn. For example, she allegedly lied about being gang-raped in her country, prompting her to flee and seek asylum in the U.S. As for the May 14 incident, she supposedly made inconsistent claims about when she reported the alleged sexual attack to her supervisor—immediately after it happened versus after she cleaned another room.
As a result, the Manhattan District Attorney’s office dropped the charges against Strauss-Kahn, citing Diallo’s “history of inconsistencies and lies.” DA Cyrus Vance Jr. said Diallo would not make a credible witness.
As we all know, Diallo is the hotel maid from Guinea who brought explosive charges of attempted rape against Strauss-Kahn, an influential world leader who some were hoping would be elected the next president of France. In their legal battle, it’s arguable that what Diallo reportedly lied about in her asylum application would have carried more weight than what actually happened in that hotel suite.
Asylum seekers who followed DSK vs. Diallo should be worried at the collapse of the criminal case (a civil suit remains pending). In the complicated, cutthroat process of obtaining asylum, bending the truth often becomes part of a legal maneuver. It’s not uncommon for female asylum seekers, for instance, to include rape in their applications. They believe, or are advised by their lawyers or friends, that the more threatening the circumstances the greater their chances of being accepted in the U.S. Many asylum-seekers represent themselves in immigration court, because they cannot afford a lawyer and are not guaranteed one by law. Some immigration lawyers maintain that the majority of stories they see on asylum applications have “inconsistencies.”
Not to excuse the practice, but if that’s true, it’s worth asking, should asylum applications even be allowed as court documents?
Application for asylum is one of the thorniest avenues in the complicated immigration process. The U.S. government is conflicted about returning a person to a place where his or her life would be threatened, so applicants are allowed to plead their case in front of an immigration judge. This process often lasts as long as two years or more, pending appeals. In the meantime, applicants are allowed stay in the U.S. while their lawyers try to find ways they can legally work and potentially remain here permanently.
After 9/11, fears that terrorists would try to sneak into the country under the pretext of asylum prompted a tightening of the screws. There seems to be no established guidelines on who can be granted asylum, and immigration judges’ decisions have been described as inconsistent. In 2010, 21,113 people were granted political asylum in the U.S., reflecting a downward trend that started in 2008.
The difficulty of extracting an accurate and detailed testimony has long been recognized by humanitarian agencies working with asylum seekers. Some who flee under extreme stress suffer Post-Traumatic Stress Disorder, which makes it difficult for them to recall many of the details of traumatic events. In some cases, it becomes difficult to speak clearly and coherently about what had happened.
“In the rush to leave their homeland…they often lack documents or witnesses to prove who they are, why they left home, or what dangers await them upon return. Usually, their own oral testimony is the only ‘proof’ they have. It thus is up to the decision-maker to determine whether this testimony is sufficiently detailed and believable to justify granting asylum,” according to the TRAC Immigration Primer on asylum law.
What the DA heard was Diallo’s story full of holes like swiss cheese, and he believed it wouldn’t stand up in court. Instead of getting an independent immigration judge to assess her credibility as a witness, the DA’s office unilaterally decided Diallo was an unreliable witness and dropped the suit.
But many questions remain unanswered: Did the DA’s office investigate if Diallo’s asylum application fell victim to legal mishandling? Are the inconsistencies in her testimony a result of repressed trauma or bad legal advice? Does Diallo vs. DSK set a precedent that no asylum seeker will be considered credible enough to win a rape case?
Inconsistencies in Diallo’s stories could very well signal a woman having trouble accessing the traumatic memories of her past —memories she’s being forced to recall but which she’d rather forget.
That could feel like being raped all over again.