By Noeleen Walder and Toni Clarke
NEW YORK (Reuters) - In the days since Dominique Strauss-Kahn's arrest for the attempted rape of a hotel maid, lurid details of the ex-IMF chief's past sexual exploits -- both alleged and admitted -- have continued to fill the tabloids.
But legal experts say that prosecutors will face an uphill battle if they try to introduce any of the encounters as evidence in the criminal case against Strauss-Kahn.
"What the courts want to avoid is showing that he's done it so many times that it's more likely that he did it this time, and to substitute that reasoning for evidence," said well-known defense lawyer Gerald Shargel, who has represented such clients as John Gotti Jr. and disbarred attorney Marc Dreier.
Existing New York law is "tantamount to a presumption" that prior acts of sexual misconduct cannot be introduced at trial.
But there is a limited set of exceptions under which such evidence can be used, for example to show there is something unique about the way a defendant conducted prior sexual activity, to rebut a defense of consensual sex, or to impeach a defendant's testimony.
In contrast, the federal rules of evidence -- which do not apply to New York courts, where Strauss-Kahn's case is being heard -- permit prior sexual acts to be introduced in a sexual-assault case for any purpose.
On May 15, Strauss-Kahn, 62, was pulled off an Air France plane by authorities after a maid at the Sofitel Hotel in midtown Manhattan said he had attempted to rape her and forced her to perform oral sex on him. Strauss-Kahn, who has vehemently maintained his innocence, stepped down from his post at the IMF last week.
After spending several nights at Rikers Island jail, he was granted bail on May 19 on the condition that he be placed under the 24-hour watch of armed guards. He was indicted on seven counts, including attempted rape and first-degree criminal sexual act.
Meanwhile, the media have painted a picture of Strauss-Kahn as a well-known womanizer who has been repeatedly excused for his past behavior on both sides of the Atlantic.
In 2008, Strauss-Kahn admitted to a consensual affair with Piroska Nagy, an economist he worked with at the IMF. While the IMF reprimanded him in that instance, he was cleared of any abuse of power.
In a letter to the IMF board, Nagy, who has since left the Fund, said she "got sucked in" by the "charismatic" ex-IMF chief's persistent advances. She characterized Strauss-Kahn as "a man with a problem that may make him ill-equipped to lead an institution where women work under his command."
Law enforcement sources told Reuters they are reviewing the Nagy case.
During Strauss-Kahn's arraignment last week, assistant district attorney John McConnell said that Strauss-Kahn had reportedly "engaged in conduct similar to the conduct alleged in this complaint on at least one other occasion."
A source close to the investigation told Reuters that McConnell was referring to an alleged encounter with Tristan Banon, a journalist who has accused Strauss-Kahn of violently attacking her while she interviewed him in 2002. Banon is reportedly considering filing charges, but her lawyer told Reuters last week she would not testify to U.S. investigators.
And on Tuesday, a law enforcement source told Reuters that the day before the alleged attack on the maid, Strauss-Kahn asked another Sofitel employee if she would meet him after she finished work. The employee reportedly declined, saying that it was against hotel policy and that she could lose her job.
Even moments before his arrest, the New York Post reported, Strauss-Kahn made a sexually suggestive comment to an Air France flight attendant.
A BALANCING TEST
Can prosecutors convince a judge to allow them to use any of this information in a possible trial against Strauss-Kahn? Legal experts suggest there is little doubt that they will try.
"That is a highly-charged issue that is resolved pre-trial by motion," said defense lawyer Bradley Simon, of Simon & Partners.
Michael Bachrach, a defense lawyer who represented Al Qaeda conspirator Ahmed Khalfan Ghailani, said that ultimately the judge presiding over Strauss-Kahn's case will apply a balancing test to decide whether evidence of past acts should be admitted.
"The judge will balance the relevance and usefulness of the evidence to establish the current charges, versus the danger of unfairly confusing the jury into thinking that just because a past allegation had occurred that this means the present charges are true," Bachrach said.
He said that courts generally are concerned that introducing past allegations will confuse or inflame a jury. But a century-old New York case does give prosecutors a potential avenue for admitting such evidence.
In People v. Molineux, decided in 1901, the Court of Appeals ruled that prosecutors can in limited circumstances introduce evidence to show that a defendant has a "signature" or unusual pattern of criminal activity.
For example, if Strauss-Kahn has a history of approaching cleaning women in hotels and trying to coerce them into having sex, that would probably be admissible in this case, former prosecutor Paul Callan of Callan Koster Brady & Brennan said.
OPENING THE DOOR
Another way prosecutors could introduce evidence of past sexual encounters would be if the defense "opened the door" by, for example, arguing that the sex was consensual.
If his lawyers made that claim -- which they appeared to do during his arraignment when they argued that "the forensic evidence ... are not consistent with forcible encounter" -- or argued that Strauss-Kahn was framed or entrapped, that could allow the prosecution to demonstrate that he has done this to women in the past, Callan said. And if prosecutors uncover other instances in which Strauss-Kahn has attempted to "overcome a woman's resistance," a judge might allow that evidence, he said.
"The defense has to tread very, very carefully because they might trigger the prosecutors' right to introduce evidence of his alleged misconduct with any women," Callan said.
But Callan said he did not think prosecutors could convince a judge to allow testimony about Strauss-Kahn's reputation as a ladies' man or the overtures he has allegedly made to other women. The mere claim that he is a Lothario would be inadmissible, he said.
This could all change if Strauss-Kahn testifies. If defense attorneys put him on the stand, prosecutors could use his sexual affairs to attack his credibility, Callan said.
Ultimately, it's too early to predict what will happen in the courtroom. But Shargel said he suspects that the trial ultimately will be "about what happened in the hotel room on that day, not the life and times of Dominique Strauss-Kahn."
(Reporting by Noeleen Walder and Toni Clarke; additional reporting by Michelle Nichols; Editing by Jesse Wegman and David Storey)