Generally, I prefer to waste my expensive legal education talking about sports, but today I am going to host a Q&A about this situation that ranges from simple to detailed, for fans who might have some interest. Note as a Texas lawyer that I know more about criminal and civil law than I know about Nevada law.
Reno Gazette-Journal: Lawsuit Against Roethlisberger (PDF)
This is a basic legal lesson that most people know from the OJ Simpson case. To oversimplify, a criminal case is a crime against the state resulting in criminal sanctions such as probation, fines, jail time. A civil case results in monetary damages against the person accused of doing a wrong that is against state law.
In a criminal case, to find someone guilty, the jury has to decide that the accused was guilty "beyond a reasonable doubt." Generally, in a civil case, the person bringing the action needs to show to the jury that "more likely than not" each element of the case happened.
The allegations are bad. How could the police not arrest him?
First, they have to know of the assault. Then they have to investigate the assault. Then they file charges, if they believe that there is probable cause a crime has occurred. In general terms, "probable cause" means the reasonable belief that a crime has occurred. We don't know what police involvement, if any, has been in this case. The police could file charges at any time (but within the time period the law proscribes) if they believed the evidence supported it, even after the civil charges are filed.
Doesn't a criminal investigation come first?
David Cornwell, Roethlisberger's counsel, dismisses the allegations suggesting that "criminal complaint and a criminal investigation are the most compelling evidence of the absence of any criminal conduct."
Typically, it looks bad for a civil claim against someone for sexual assault, if the person making the complaint didn't go to the police and file a report. Then, as Cornwell suggests, it looks like just a grab for money instead of something that actually happened.
However, it is possible that the only people who know of the existence of a criminal investigation or an attempt at filing charges are the person making the complaint and the police. In Nevada, those investigations are to remain confidential. And sometimes, after those investigations, the police believe there is not sufficient probable cause to file charges. As a matter of practice and not policy, sometimes police and district attorney's offices will give extra scrutiny to high profile cases because they don't want to file on an iffy case if they think they will eventually lose.
However, just because a case may have been difficult to win in a criminal court doesn't mean it would be difficult to win in a civil case.
Does the lack of an early criminal complaint mean it didn't happen?
Let's assume that McNulty didn't initially go to police, and then later thought it wouldn't matter because of a lack of evidence. A delay in outcry is not unusual in sexual assault cases. Some events cause the victim feelings of embarrassment and shame, making them reluctant to deal with the legal system. And then, after a while, they get angry and want to get justice for the wrong that they feel.
One of the reasons why people are reluctant to file a civil case in matters involving defamation and sexual assault is because they know that this means intense public scrutiny of their private life.
Hotel workers are also named in this complaint and it suggests that they knew something at the time. So even without a criminal filing, this suggests that there may be some evidence that she told people at the time it happened.
What special problems do a civil case present for Ben Roethlisberger?
Nobody likes being involved in litigation. When it is a swearing-match sort of case, there is little chance that a court will drop it prior to resolution between the parties. In some cases, a party will file a "summary judgment" to dismiss a case early in the process. But to get a case dismissed through this motion, one thing you have to prove is that there are no disputed key facts. In a he said-she said type of case, by its nature, it means that the parties are going to have to resolve it between themselves or go to trial.
Often celebrity clients will settle with plaintiffs so they don't have to go through the litigation and discovery process. Most cases, celebrity or not, get settled prior to trial. To properly prepare for a case costs a lot in legal fees. And celebrities prefer not to have to get their deposition taken, a sworn statement where the lawyers can ask a wide variety of questions.
Unlike in a criminal case, in a civil case, a defendant can't easily "plead the fifth," using their constitutional right against self-incrimination. Big Ben would pretty much have to talk unless he wants to pay big bucks. In a civil case, you can still plead the fifth if telling the truth might subject you to criminal prosecution. However, if you do that, a jury may infer that this means you engaged in criminal activity.
What special problems do multiple defendants present for Ben Roethlisberger?
It is sometimes hard to settle and defend a case with multiple defendants. Even if Roethisberger wanted this case to settle tomorrow, there would still be the claims against the other defendants. He doesn't know what they are going to testify, or whether, eventually, they may choose to cooperate with the plaintiff.
I bring this up because, in contrast to the accusations against Kobe Bryant -- his counsel was able to make everything go away by confidential settlement -- more defendants makes it harder for Big Ben's counsel to just money-whip the case away and out of sight.
Why is it important to keep an open mind?
It is likely in the days ahead you will hear all sorts of gossip about this situation. It's been my experience in high-profile criminal and civil cases that a lot of the times the public reports are inaccurate.
All we can truly know at this point is that there is an allegation and a denial. And this is not likely going to go away soon, because the only thing slower than the legal process is my 40-time, which is glacial.