Dominique Strauss-Kahn, in handcuffs, dominates for one more day

Today's tabloids, May 17, 2011. ()
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Each day, the New York tabloids vie to sell readers at the newsstands on outrageous headlines, dramatic photography, and, occasionally, great reporting. Who is today's winner?

The New York Post: It's another full page for the man the French call D.S.K. "HE DID HAVE SEX WITH THE MAID" screams the knockout-white headline over a picture of International Monetary Fund chief Dominique Strauss-Kahn, slumped on a wooden bench with his legs stretched out before him, crossed at the ankles, like a high-school junior waiting his turn outside the principal's office. Of course the news yesterday on the web broke before about 11 a.m., that D.S.K. would be denied bail and would spend nearly a month in protective custody before his first court appearance related to charges he sexually assaulted a maid at his midtown hotel Saturday afternoon. So the Post rightly highlights something that was less widely included in articles about the arraignment hearing yesterday to put a topspin on today's print story. The Post reports:

"The evidence, we believe, will not be consistent with a forcible encounter," said Ben Brafman, the high-powered lawyer of IMF chief Dominique Strauss-Kahn, at the suspect's sensational arraignment in a packed criminal courtroom.

A source close to the defense later told The Post, "There may well have been consent."

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I'd been wondering with a couple of people over I.M. yesterday morning whether an imminent court order to collect DNA from the suspect for trace evidence of a brawl was enough to get high-powered lawyer Benjamin Brafman to agree to the procedures. At any rate, the defense must believe the evidence that there was a sex act in that hotel room is overwhelming, which leaves them really only affirmative defenses. We'd been considering a report from French website Rue89 about an old case from 2002 in which the journalist Tristane Banon has claimed D.S.K. attempted to rape her. In an interview with the site, Banon's mother, Anne Mansouret, herself big in the Socialist party in France, tells the reporter she confronted D.S.K. about the affair and he apologized saying he had "lost his head." ("I went crazy" is the translation going around, but she actually says he said, "Il a perdu la tête.") So was some kind of insanity defense in the works? Turns out, no: Just that depressing old case of he-said, she-said on the consent issue.

What's puzzling is that the Post seems to declare it as though it's some kind of admission: Did we not realize as soon as we heard he'd be tested that either the DNA would clear him or that an affirmative defense is coming? Still, they're smart to sell this slightly shopworn news the way they did. It is, in fact, the most important thing that happened yesterday, even if the French are still gasping over the Event of the Handcuffs.

Daily News: There's less pressure on the News today to sell the D.S.K. story, since it doesn't dominate the page. About a third of the vertical length of the page is the height of the plain text box, with no picture, reading "NO MERCI!" which is pretty good, actually. "French big denied bail in sex assault on maid."

An interesting, to me, question arises here. In some cases of rape, there is no question, and no need of any other physical evidence beside that provided to the police lab, that a rape occurred; the question is identifying the attacker. Affirmative defenses aren't likely in those instances.

So from the moment a rape case opens, it can be called "rape" in headlines without reversing the presumption of innocence of any particular suspect that comes to the fore. The victim was raped, but this person may not have been the rapist.

But in cases where the suspect is identified and the claim of innocence is based on the premise that a rape did not occur, it's trickier to preserve the presumption of innocence. We saw this recently in the case of the police officer accused of raping a woman he helped up to her apartment from a cab after the driver called 911 for help, because she was too drunk to remove herself. In that case, there isn't apparently conclusive evidence of rape or even of sex, though there is substantial circumstantial evidence.

At any rate for our purposes the result is the same: The defense is that there was no rape, in this case because there was no intercourse. In front-page shorthand, the tabloids have dubbed the man "RAPE COP."

It's pretty unflattering for sure! But it perpetually relegates the word "rape" to scare-quotes. The trial is about determining the nature of the actions of the defendant, not identifying him as the perpetrator. Is this caution in favor of the presumption of innocence lost in the News dek? It seems to me to assert the fact of a sex assault, something that would not be true if D.S.K. were innocent on the grounds he appears to be presenting. (It doesn't matter that the trial hasn't begun: Defendants must introduce an affirmative defense early, as a rule, in order for it to be accepted by the court.)

Anyway, it's a little academic, because the dominant story on the page is about Jorge Posada, who reportedly blew up at Yankees general manager Brian Cashman Saturday night and said he wanted off the team. "MAD BOMBER" reads the yellow, black-outlined text over a close-cropped photo of a glum-looking Posada. "Inside the tirade: Posada told Yanks he wanted off team."

Observations: It's hard to judge how long the D.S.K. story, which is so rich in tabloid material, ought to dominate the front of the tabloids. An unscientific bit of research shows me that the cover story on D.S.K. in this morning's Post, which was posted to the web first yesterday, occupies three of the top five "most read" stories in that little recirc widget in the website's right rail. (Arnold Schwarzenegger's revelations about a lovechild occupy spot No. 4.) It's probably a pagination issue: the D.S.K. story is split into three pages on the site. Still, that means a lot of readers.

Can the Post online audience demographic be so totally different from the tabloids' print readerships that that doesn't say something about the need to stay on the story? And there was news yesterday that properly makes it into today's paper, even if it's a sleight of hand that makes the Post story look fresher this morning than the News'. And here I'll also claim a source of error: I just don't have much interest in Jorge Posada's disagreements with management, and can't see how that story couldn't be sold perfectly well to people who do with a small strip pointing them to the back page.

It doesn't matter much. Tomorrow morning's papers will have a similar challenge. The late-night newsbreak from The Los Angeles Times that Arnold Schwarzenegger fathered a child 10 years ago with a member of his household staff who only retired in January, and that his revelation to wife Maria Shriver of the lovechild was the reason for their split after 25 years of marriage, came in too late for the front page, I assume. At any rate, you can expect the Governator to be sparring for space with D.S.K. on tomorrow's fronts, as long as the papers can find a topspin on both stories that will make them feel fresh. The winner, on that score, is obvious today.

Winner: The New York Post.