Commentary

A legal look at the Johan Santana case

Was it sexual assault or consensual sex? The suit could be a test of victims' rights

Originally Published: October 7, 2010
By Lester Munson | ESPN.com

What makes the world go 'round? Love, say romantics. The leftover momentum from the solar nebula that all of the planets and the sun formed within, say scientists. (That's cribbed straight from the Universe Today web site, by the way.) The legal machinations in a good ol'-fashioned sexual assault lawsuit involving a high-profile athlete, says Courtside Seat.

That, and labor strife, of course. We'll get to the latest twist in the NFL's ongoing ownership-union battle at the bottom of this file. But first, today we start with …

A stand-up guy

For Mets ace Johan Santana and a 35-year-old single mother of two, it started a year ago with some conversation, a photo and an autograph at the tennis courts in their gated Fort Myers, Fla., neighborhood known as the "Renaissance Community." (Apparently, they're running out of names for golf course developments in Florida.) Next was an exchange of phone numbers, some texting, some tennis and a couple of evening walks on the adjacent golf course.

Now, it's a lawsuit. The woman, filing under the courthouse nom de guerre "Jane Doe," says their second walk on the cart path ended in a violent rape. She is seeking money damages in her civil lawsuit, claiming "pain, suffering, and anguish." No criminal charge has been filed against Santana, who, according to police records, says that the accuser led him into the woods and seduced him, and that the sex was consensual.

[+] EnlargeJohan Santana
AP Photo/Kathy WillensJohan Santana might be in for a battle in his defense against a civil suit.

With the accuser and Santana offering irreconcilable accounts of what happened, it's difficult to predict what might happen if the suit comes to trial. But it is possible to identify factors that will be critical in the outcome of the dispute.

Whose story is more plausible?

Her side:

The accuser told Lee County investigators that she and Santana were neighbors in the Renaissance Community. After their initial meeting at the tennis court, there was some flirtation and some kissing during their walk. But, the accuser said in a video statement, when Santana began to pull off her clothes, she told him, "No, please no, not here, not like this." Despite multiple protests, she said, Santana, 6-foot and 210 pounds, persisted, raping her vaginally from the rear and impregnating her. (She later lost the baby in a miscarriage.) Moments after the incident ended, the accuser told police, Santana said to her, "This is crazy. I'm sorry."

His side:

Santana told police that the accuser led him to a secluded, wooded area off the cart path and "seemed very excited and forward." She told him they should continue with things in her house, but the circumstances advanced too quickly for them to get there. Santana's story includes a description of casual conversation as they returned to the tennis courts and of the accuser sitting with his father, Jesus, 58, and watching Santana play tennis with a pal.

Whatever happened on the golf course, the versions from both sides indicate that the sex was all done standing up and lasted only a few minutes. And both the accuser and Santana agree that they never saw each other again after the fateful golf-course walk Oct. 28 of last year.

Consistent with the accuser's story are her visit later in the evening to a rape crisis center, where she reported the incident and submitted to a "rape kit," a detailed medical examination that is done after an allegation of a sexual assault.

Inconsistent with her story is the finding during the examination that there were "no vaginal injuries." Abrasions or laceration in the vaginal area can be powerful evidence that an accuser is the victim of a violent, non-consensual assault.

John Clune
Thomas Cooper/Getty ImagesJohn Clune, the accuser's attorney, represented the woman in the 2004 Kobe Bryant case, too.

Whatever the flaws in the accuser's story, she will be well represented at trial, if the case goes that far, by Colorado attorney John Clune. This is not the first time he has represented an accuser in a sexual assault case. Clune specializes in guiding rape victims through the court system and, when he thinks it's appropriate, filing civil lawsuits seeking money damages for his clients.

Clune began to become aware of the difficulties facing women who claimed rape in 2003 and 2004 when he represented the woman who charged Kobe Bryant with raping in a luxury hotel near Eagle, Colo. Two years later, after encountering serious difficulties in his attempt to help an 8-year-old who was a victim of a sexual assault, Clune decided it was time to do something.

"I could keep beating my head against the wall in these frustrating situations, I could walk away from them, or I could try to do something about it," Clune told ESPN.com.

Deciding to try to do something for victims of violent crimes, Clune formed Victim Justice P.C. in Denver, a "balanced partnership of law and psychology" that in its web site promises to produce the "best possible results -- both judicial and personal -- for victims and their families."

Clune's work for the accuser in the Bryant rape prosecution was impressive, despite the failed prosecution of the Lakers star. In a remarkable series of confrontations with District Court Judge Terry Ruckreigle after courthouse staff were caught in four major blunders, releasing impounded material to the public, Clune forthrightly and courageously demanded the judge show some consideration for the accuser. In each of the erroneous releases of information, the material was derogatory of her.

Clune, in a legal brief to Ruckreigle, accused the judge of conduct that was "legally and morally unconscionable." He wrote that the judge was guilty of "enormous, outrageous prejudice" in favor of Bryant and against the victim. And he accused the judge of trying to muzzle the victim and Clune with gag orders that would "improperly protect [Ruckreigle] from public comment and criticism regarding the frequent prejudicial errors."

The judge, Clune asserted, was ignoring a Colorado law that guarantees crime victims a right to be treated with "fairness." The judge "violated that [victim] right at almost every turn in this process," Clune argued.

It is beyond rare to see that level of attack on a presiding judge, but Clune did not hesitate. He even went on "Good Morning, America" with his charges in his attempt to turn things around for the accuser.

According to Clune, he, the accuser and her family came to the conclusion that Ruckreigle and his rulings had "poisoned the jury pool in Eagle County," where the case was to be tried. That prompted them to tell the prosecutors that the accuser was no longer willing to participate in the case, resulting in the dismissal of the charge against Bryant.

[+] EnlargeJohan Santana
AP Photo/Denis PoroySo far, the evidence against Santana hasn't been strong enough for the sheriff's office to push for a prosecution.

Santana's accuser has already experienced some of the difficulties that frequently occur in these cases. Even though the Lee County sheriff's police conducted a detailed investigation of her allegations, they have never submitted their file to the State Attorney for a decision on whether to prosecute.

Samantha Syoen, a spokesperson for the prosecutor, says, "We have never received the case for an official review."

Early in the investigation, the lead prosecutor of the special victims unit met with Lee County police to discuss the Santana situation along with 20 other cases. After what Syoen calls an "informal discussion" of the early findings in the investigation, the prosecutor, Francine Donnorummo, told police investigators that there appeared to be "insufficient evidence of lack of consent."

But Donnorummo's early evaluation was not an official refusal to prosecute, according to Syoen.

"It was informal," she says. "It was done quickly in a meeting with numerous other issues and other cases. And we have never received a request to evaluate the case."

In response to an inquiry from ESPN.com, the sheriff's office released this statement on Thursday: "This case was presented to our State Attorney just as we would any other case of this nature and based on the evidence available following a thorough investigation, they decided not to prosecute. Our standard is probable cause while theirs is beyond a reasonable doubt. The reality is that Mr. Santana was investigated based on a 'he said/she said' premise and the matter of consent vs. non-consent given the evidence did not rise to a level that our State Attorney was comfortable moving forward with based on the rule of law."

But the civil suit battle between the accuser and Santana, who signed a six-year, $137.5 million contract with the Mets in 2008, is still in the early stages. Based on Clune's work in the Bryant prosecution and his commitment to victims of violent crime, it will be worth watching as it moves forward. Maybe it was just a walk down the cart path, or maybe it will become a test of the Florida justice system and the way it treats victims of violent crime.

Fox in the henhouse

There is little doubt that AFL-CIO president Richard Trumka knows something about contentious labor disputes. The 61-year-old Trumka has devoted his life to helping workers and their unions, and he has been instrumental in the settlement of labor-management battles involving longshoremen, transit workers and coal miners.

But even with all of that experience and accomplishment, I'm still not sure what Trumka was thinking when he offered recently to try to work out a settlement between NFL players and team owners. Trumka told the owners and the players that if they bring him their financial records and meet with him, he expects to be able to help them avoid the lockout that the owners appear to be planning for next spring.

He can save the 2011 season!

The NFL quickly disposed of the offer with the very plausible explanation that DeMaurice Smith is on Trumka's AFL-CIO board.

Richard Trumka
Alex Wong/Getty ImagesCould AFL-CIO president Richard Trumka be objective as a mediator in the NFL's labor dispute?

After all, how would the union feel if a team owner was appointed to serve as a mediator?

But even if the NFL owners somehow agreed to give Trumka a chance to negotiate a settlement, what would be his chances of success?

The NFL situation is radically different and more complicated than anything Trumka or any other mainstream labor leader has ever encountered.

The members of the union are wealthy young men whose careers average less than four years. They are workers unlike any other in American labor. Each has his own agent, a representative who frequently disagrees with union positions. The union's history includes strikes that have rarely been successful and antitrust litigation that has been uniformly successful.

In the history of the NFLPA, the decertification of the union has been a critical turning point. Decertification is the first step in a process that allows players to sue the owners under America's antitrust laws. These lawsuits, all filed after decertification, have led to the free agency, bonuses, health coverage and pensions that the players now enjoy.

Decertification in the current case, for Trumka and mainstream labor leaders, would border on the unthinkable. After organizing, nurturing and developing a powerful labor organization, it would be difficult for them to toss the union aside and rely on expensive and complex litigation to achieve what they want in wages, hours and working conditions.

Only for a union like the NFLPA does decertification and litigation provide leverage that allows players to seek greater benefits. And, in fact, the NFL players are already conducting meetings to authorize decertification of their union again.

On top of the membership and legal complexities, there's the profound antagonism in the relationship between the players and the owners. Both sides appear to be preparing for a lockout, a work stoppage that could easily threaten the 2011 season. The owners have included lockout clauses in coaching and television contracts and have hired Robert Batterman, the attorney who led the NHL through a season-long lockout in 2004-05. (Here's a detailed look at the situation.)

And in betrayals that are rarely scene in the world of labor, two NFLPA activists are now working for the owners -- Troy Vincent, a former president of the NFLPA, and George Martin, who is representing the owners in issues involving older retired players.

It's hard to imagine how Trumka, with all of his other responsibilities as the leader of the AFL-CIO, could sort through the complexities and the antagonism.

If Trumka wants some advice on the issue, he should perhaps call former president Bill Clinton. After the 1994 baseball work stoppage caused the cancellation of the World Series and had the 1995 season in jeopardy, Clinton thought he could contribute to a settlement. After four hours with the players and the owners, he gave up and suggested arbitration of pending issues, the one thing both sides would not accept.

It was easier for Clinton to negotiate with the Israelis and the Palestinians than it was to mediate between baseball players and team owners.

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.

MORE COMMENTARY >>

ALSO SEE