No charges against Roethlisberger hints at possible settlement with accuser

Journalists are sometimes accused of burying the lead, when the most compelling piece of information appears almost as an afterthought in the middle or bottom of a news item.

Ocmulgee (Ga.) Judicial Circuit District Attorney Fred Bright arguably buried the lead on Monday when announcing that charges would not be pursued against Steelers quarterback Ben Roethlisberger. After discussing the evidence that prompted the decision, Bright added in "oh by the way" fashion that the alleged victim in the sexual assault case had indicated, in a letter written by her lawyer on March 17, that she no longer wished to pursue the matter. As the letter indicates, the alleged victim chose to abandon the matter not because she believed she hadn’t been sexually assaulted, but because she concluded that participating in a public trial with intense media scrutiny conflicted with her long-term best interests.

Most parents of 20-year-old daughters likely would agree with that sentiment. But it created a major problem for Bright. In most criminal cases (except in the event of a murder, where the victim is physically incapable of cooperation), no viable prosecution can proceed if the victim has no desire to participate. Given the very high American standard of proof beyond a reasonable doubt, a case premised on the star witness being a reluctant victim has no chance of success.

Frankly, Bright should have made that point from the outset of his remarks. It would have made it far easier to understand the situation if Bright merely had said, "Look, there were only two people in that bathroom. One of them isn’t talking. The other one doesn’t wish to proceed. It’s a case no one can win."

Let’s be candid about this. The alleged victim and her family didn’t promptly hire a lawyer with the goal of having someone communicate on their behalf with the prosecutor. They hired a lawyer to advise them as to the alleged victim’s rights — and in turn to represent her interests in conjunction with an eventual civil claim.

Even if the amount of settlement reflects only the expenses that would have been incurred by Roethlisberger if the prosecution had proceeded and/or the costs of defending against a civil suit, the amount would have been sizable. Still, and as suggested in the wake of the initial charges, it would have been very prudent for Roethlisberger to attempt to use his vast financial resources to put this matter behind him.

In 1993, Michael Jackson paid more than $20 million to a boy who accused the late singer of molestation. The boy then refused to testify in the criminal proceeding, and the case went away. More recently, talk of a looming civil settlement seemed to derail the rape prosecution of NBA star Kobe Bryant.

In both of those cases, reports of a settlement created a cloud of guilt. The lesson for lawyers handling similar matters became clear — when striking such deals, ensure complete and total confidentiality.

If done properly, no one would know that a settlement had been negotiated. Sure, some may suspect it. But there wouldn’t be a report in the newspaper or on television. The information would be tightly controlled, and the penalties for disclosure by the alleged victim would include forfeiture of most if not all of the payment.

For Roethlisberger, it would reflect sound business judgment. For the alleged victim, it would provide compensation for whatever she endured, and it would allow her to get on with her life. Though a desire to maintain secrecy implies impropriety, the simple fact is that if Roethlisberger paid any amount of money to resolve the claims, a large chunk of the general population would regard the development as an admission that he did something wrong.

In this case, guilt and innocence are bright lines that don’t mesh with the gray areas of consent and intoxication and reasonable doubt. But alleged victims who hire lawyers rarely decide to walk away with no strings attached. That’s why it would be naive to assume that the alleged victim in this case simply dropped the matter. Few lawyers ever get a $102 million tiger by the tail; when they do, they don’t like to let go easily.

Whether it’s morally right or wrong is irrelevant. If the alleged victim dropped the matter in the wake of a settlement paid by Roethlisberger, the decision will have been the product of two adults making a reasoned decision regarding the resolution of a mutual problem. And it would produce a form of justice no different than the settlement of any other civil claim involving behavior that also potentially violates one or more criminal laws.

Mike Florio writes and edits ProFootballTalk.com and is a regular contributor to Sporting News. Check out PFT for up-to-the minute NFL news.

Journalists are sometimes accused of burying the lead, when the most compelling piece of information appears almost as an afterthought in the middle or bottom of a news item.

Ocmulgee (Ga.) Judicial Circuit District Attorney Fred Bright arguably buried the lead on Monday when announcing that charges would not be pursued against Steelers quarterback Ben Roethlisberger. After discussing the evidence that prompted the decision, Bright added in "oh by the way" fashion that the alleged victim in the sexual assault case had indicated, in a letter written by her lawyer on March 17, that she no longer wished to pursue the matter. As the letter indicates, the alleged victim chose to abandon the matter not because she believed she hadn’t been sexually assaulted, but because she concluded that participating in a public trial with intense media scrutiny conflicted with her long-term best interests.

Most parents of 20-year-old daughters likely would agree with that sentiment. But it created a major problem for Bright. In most criminal cases (except in the event of a murder, where the victim is physically incapable of cooperation), no viable prosecution can proceed if the victim has no desire to participate. Given the very high American standard of proof beyond a reasonable doubt, a case premised on the star witness being a reluctant victim has no chance of success.

Frankly, Bright should have made that point from the outset of his remarks. It would have made it far easier to understand the situation if Bright merely had said, "Look, there were only two people in that bathroom. One of them isn’t talking. The other one doesn’t wish to proceed. It’s a case no one can win."

Let’s be candid about this. The alleged victim and her family didn’t promptly hire a lawyer with the goal of having someone communicate on their behalf with the prosecutor. They hired a lawyer to advise them as to the alleged victim’s rights — and in turn to represent her interests in conjunction with an eventual civil claim.

Even if the amount of settlement reflects only the expenses that would have been incurred by Roethlisberger if the prosecution had proceeded and/or the costs of defending against a civil suit, the amount would have been sizable. Still, and as suggested in the wake of the initial charges, it would have been very prudent for Roethlisberger to attempt to use his vast financial resources to put this matter behind him.

In 1993, Michael Jackson paid more than $20 million to a boy who accused the late singer of molestation. The boy then refused to testify in the criminal proceeding, and the case went away. More recently, talk of a looming civil settlement seemed to derail the rape prosecution of NBA star Kobe Bryant.

In both of those cases, reports of a settlement created a cloud of guilt. The lesson for lawyers handling similar matters became clear — when striking such deals, ensure complete and total confidentiality.

If done properly, no one would know that a settlement had been negotiated. Sure, some may suspect it. But there wouldn’t be a report in the newspaper or on television. The information would be tightly controlled, and the penalties for disclosure by the alleged victim would include forfeiture of most if not all of the payment.

For Roethlisberger, it would reflect sound business judgment. For the alleged victim, it would provide compensation for whatever she endured, and it would allow her to get on with her life. Though a desire to maintain secrecy implies impropriety, the simple fact is that if Roethlisberger paid any amount of money to resolve the claims, a large chunk of the general population would regard the development as an admission that he did something wrong.

In this case, guilt and innocence are bright lines that don’t mesh with the gray areas of consent and intoxication and reasonable doubt. But alleged victims who hire lawyers rarely decide to walk away with no strings attached. That’s why it would be naive to assume that the alleged victim in this case simply dropped the matter. Few lawyers ever get a $102 million tiger by the tail; when they do, they don’t like to let go easily.

Whether it’s morally right or wrong is irrelevant. If the alleged victim dropped the matter in the wake of a settlement paid by Roethlisberger, the decision will have been the product of two adults making a reasoned decision regarding the resolution of a mutual problem. And it would produce a form of justice no different than the settlement of any other civil claim involving behavior that also potentially violates one or more criminal laws.

Mike Florio writes and edits ProFootballTalk.com and is a regular contributor to Sporting News. Check out PFT for up-to-the minute NFL news.

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