- Lester Munson, Legal Analyst
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Because there was not enough evidence to "prove a crime beyond a reasonable doubt," a Georgia prosecutor has decided not to file any charges against Ben Roethlisberger after a college student accused him of sexually assaulting her in the bathroom of a nightclub on March 5. The decision by Fred Bright, district attorney for the Ocmulgee Judicial Circuit, raises legal questions. Here are some of the questions and their answers:
Question: What were the key factors in the prosecutor's decision not to charge Roethlisberger?
Answer: Two factors were critical.
First, the victim was, according to Bright, "highly intoxicated" after an evening of barhopping and drinking shots with her sorority sisters. With the details of the incident lost in a fog of intoxication, prosecutors are reluctant to file charges. Although the law requires that Roethlisberger's behavior would be the central issue in any trial on a sexual assault charge, prosecutors know that jurors are reluctant to convict when the accuser is shown to be guilty of any form of risky or contributory behavior. If jurors sensed that the accuser was in a brownout or blackout stage of intoxication, they likely would quickly decide on a not guilty verdict.
Second, there was no evidence of the forcible penetration that is required for the Georgia definition of rape. Bright was unusually specific in his description of the definition's requirements and in his statement that there was not enough material to obtain a sample for DNA testing. Like most states, Georgia law requires "forcible penetration" that is done "against the will" of the accuser. It is known as "carnal knowledge."
With the accuser's intoxication and little evidence of carnal knowledge -- forcible penetration against the will of the accuser -- Bright's decision was easy.
Q: The accuser wrote a letter less than two weeks after she called the police asking that no charges be made against Roethlisberger. How important was the letter in Bright's decision?
A: As Bright said in his news conference, the letter made his decision "easier." But it was not a critical factor. Prosecutors frequently file charges even when the victim is unhappy about the charges. Bright says convincingly that he would not have charged in this situation even without the letter.
Q: Does the accuser's letter mean that she will not pursue a civil money damages case against Roethlisberger?
A: No. She is still free to file a lawsuit for damages. It is entirely possible that discussions are already under way between the accuser's attorneys and the Roethlisberger legal team about an agreement and a settlement. A settlement could be made without any lawsuit and could be kept confidential with a contractual requirement that neither Roethlisberger nor the accuser ever disclose the terms of the agreement. A settlement would be of benefit to Roethlisberger in his discussions with NFL commissioner Roger Goodell and with the Rooney family, which owns the Pittsburgh Steelers.
Q: Will we ever know the details of what happened in the bathroom of the Capital City nightclub early on the morning of March 5?
A: Probably not. According to Bright, Roethlisberger's bodyguard led the accuser down a hall to the employees' bathroom and stood guard outside the door while Roethlisberger and his accuser were in the bathroom. Bright said the victim had bruises and a laceration in her genital area when examined at the hospital. Bright said that there was not enough semen or other bodily evidence to show that there was carnal knowledge or penetration. Was it consensual? Was it consensual for a time until consent was withdrawn? We do not know, and we might not ever know.
Q: How important was the lack of DNA evidence in the prosecutor's decision?
A: It was a more important factor than Bright indicated in his news conference. Bright minimized its importance as he explained his decision. Bright suggested that although the swabs from the emergency room rape kit contained some male DNA, it was not a sufficiently large amount to permit DNA testing. If there had been enough DNA for testing and the tests showed that it was Roethlisberger's semen, it would have been important evidence. If the tests had shown it was not Roethlisberger's DNA, the evidence would have been conclusive.
Q: Is this vindication for Roethlisberger? Can he now say that he was wrongfully investigated?
A: No. Bright deliberately and emphatically stated that "we do not condone what Roethlisberger did." If anyone had any doubt of Bright's evaluation of Roethlisberger's behavior, Bright made it very clear when he added: "We do not prosecute morals. We prosecute crimes." Bright's observations on Roethlisberger's conduct presumably will be major factors when Roethlisberger meets with Goodell and his team ownership.
Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.
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