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Jameis Winston not charged: Legal aftermath, possible next steps

Jameis Winston not charged in sexual assault investigation
Sports Illustrated executive editor B.J. Schecter and legal analyst Michael McCann discuss the decision to not charge Florida State's Jameis Winston with sexual assault and the effects this investigation might have on Winston's career.

In a nationally televised press conference on Thursday, State Attorney Willie Meggs announced that Florida State quarterback Jameis Winston will not be charged with sexual assault. While it sounded as if Meggs found the accuser to be generally believable, gaps in her memory coupled with the discovery of another man's (apparently the complainant's boyfriend) DNA meant the standard for charging and prosecuting Winston was not met. The case, which dates back to Dec. 7, 2012, is considered closed.

In many ways, Meggs' press conference appeared to be damage control, with Meggs -- an elected official -- insisting the investigation was comprehensive and typical. He did, however, express frustration that witnesses were not interviewed earlier.

Here's a breakdown of where things stand now, and potential legal steps that could still be taken.

SI WIRE: Florida State's Jameis Winston will not be charged in sexual assault case

Immediate legal impact on Winston

In theory, Winston could still face sexual battery charges at a later date. The statute of limitations for charging likely won't expire until 2017. Also, the "Double Jeopardy" clause of the Fifth Amendment, which bars retrying someone for same offense twice, does not apply when one is investigated but not charged.

In reality, there is little reason to believe that new evidence will emerge showing that Winston raped the complainant. He admits he had sex with the accuser, but disagrees about whether she consented and the available evidence does not sufficiently support the complainant's allegation. Short of an admission by Winston that corroborated the complainant's account -- and that law enforcement learns about -- Winston will avoid criminal charges.

However, the legal aftermath of the investigation is far from over. Provided the complainant is willing to identify herself and testify under oath, she and her attorney, Patricia Carroll, could pursue several legal strategies.

The complainant could sue Winston

Though Winston won't be charged with a crime, the complainant could still sue him in a personal injury lawsuit and seek monetary damages. Under the relevant statutes of limitation, she has until Dec. 7, 2016 -- four years from when she purportedly had sex with Winston -- to sue him. She could wait until that date to file a lawsuit, though waiting carries the risk of witnesses becoming unavailable and evidence aging. Keep in mind, the burden in a civil case is much lower than in a criminal prosecution, where the government must prove the defendant's guilt beyond a reasonable a doubt. The complainant would only need to prove that Winston probably committed a civil wrong (tort) against her.

If the complainant sues Winston, battery is a likely claim. She could argue that Winston intentionally battered her through a sexual act without her consent. Given that both the complainant and Winston acknowledge they had intercourse, consent would become crucial. Witnesses would be called to testify and provide recollections. The context in which any consent was made would also prove important.

Other possible claims against Winston include false imprisonment and intentional infliction of emotional distress. False imprisonment would require the complainant to show that Winston held her against her will, while intentional infliction of emotional of distress would demand she establish his conduct was outrageous and caused her extreme distress. To a large extent, these types of claims would generate he-said, she-said arguments, though witness testimony would shed light.

Of particular concern to someone of Winston's fame, a lawsuit would threaten pretrial discovery. Prior to trial, Winston would have to answer questions under oath. Those questions would concern the night in question, as well as his sexual history and other aspects of his personal life that he may prefer to keep private. While pretrial discovery is normally confidential, it sometimes finds its way into the hands of media. This information could potentially damage his reputation. It could also possibly render him less marketable and degrade his ability to generate endorsement income once he turns pro.

The prospect of pretrial discovery and trial could motivate Winston and his attorneys to seek a confidential settlement with the complainant. A settlement would require her to relinquish any possible legal claims she has against Winston and refrain from speaking about him in exchange for Winston paying her a substantial amount of money. If the complainant wants to remain unknown, a settlement would make particular sense.

The complainant could sue the Tallahassee Police Department

In addition to suing Winston, the complainant could also sue the Tallahassee Police Department. Specifically, she could file a civil rights claim under Section 1983 of Title 42 of the U.S. Code. Victims of domestic violence have used this law to sue police departments. The complainant could argue that the Tallahassee Police Department, and specifically detective Scott Angulo, intimidated and harassed her. She could say the police dissuaded her from implicating Winston because of Winston's importance to the Seminoles and the Tallahassee community. She could also highlight arguable missteps by the Tallahassee Police Department, including curiously waiting 10 months to test DNA and not immediately interviewing all the key witnesses, as evidence the police wanted to impede her case.

The Tallahassee Police Department would likely categorically deny these allegations. It would likely contend that the complainant was never discouraged from pursuing a case, but rather warned of the media storm that might follow. The police would similarly note that DNA evidence was complicated by the finding of another man's DNA. It could also raise questions about the complainant's believability and stress that if officers made mistakes, they were unintentional and do not rise to unlawful conduct. The decision to charge a person for a crime, moreover, is not one made by an alleged victim -- it's one made by prosecutors after determining whether there is sufficient evidence to prove a case.

In addition, judges assessing Section 1983 claims often want to see if there is a pattern of misconduct. It's unclear if other persons have felt the Tallahassee Police Department protects Seminoles players and/or discouraged prosecutions.

The complainant could sue Florida State University

The weakest potential lawsuit would be one against Florida State University, which nonetheless makes for a possible target because of its "deep pockets" to pay a large judgment or settlement. A potential claim against Florida State would be for negligent supervision. The complainant might argue Florida State should have more effectively supervised Winston and prevented him from sexually assaulting other students. The complainant would likely distinguish Winston from other university students given the attention he commands from school officials as a star quarterback. This unusual attention could carry higher legal responsibility to monitor Winston. If Florida State had reason to believe Winston acted improperly around women -- or if other female Florida State students had filed complaints against him -- this type of claim would have traction.

The main issue for a negligence suit against Florida State is that the alleged rape took place off-campus, outside the jurisdiction of campus police. While the complainant notified campus police on the night of the incident, campus police officers quickly referred the matter to the Tallahassee Police Department. The alleged crime also seems unrelated to Winston's status as a student-athlete. Along those lines, Florida State would contend it owes no legal duty for acts committed by its students while off-campus. Even if there was a duty, Florida State could maintain it cannot control students 24 hours a day, especially when they leave campus. Florida State has another defense: As a public university, it enjoys sovereign immunity and is immune from most lawsuits.

The complainant could petition the Florida Attorney General's Office and the U.S. Justice Department for Review

In addition to filing lawsuits, the complainant could ask for higher offices to intervene on her behalf. One possibility would be for her to petition the office of Florida Attorney General Pam Bondi to review the investigation and assess if police and prosecutorial misconduct occurred. This request would probably be denied on jurisdiction grounds: The State Attorney's office (Meggs) has sole authority to bring any charges and prosecute Winston. The high-profile nature of this case, however, could play a factor.

Another possibility would for the complainant to ask for the U.S. Department of Justice to consider if her federal civil rights were violated. She might argue the process had become tainted by sports and political considerations. Specifically, she might argue that Meggs and other elected officials had reasons to not charge a local Heisman Trophy candidate. The Justice Department is unlikely to formally investigate in the absence of actual evidence of impropriety.

The Clery Act, a federal law which mandates university reporting of on-campus crimes, does not appear implicated since the alleged crime took place off-campus and in a facility not owned or controlled by the university.

Could Winston sue for defamation?

In a late afternoon press conference, Winston's attorney, Tim Jansen, hinted that Winston might pursue legal action to vindicate his name. Jansen's comments allude to a defamation lawsuit. In such a case, Winston could contend that the complainant or her representatives have intentionally lied about Winston and deliberately harmed his reputation. As a public figure in a defamation suit, Winston would have the added hurdle of showing "actual malice." He would need to prove the lies about him were intentional rather than misunderstandings.

While such a lawsuit is a possibility, don't expect Winston to sue unless the complainant sues him first. If Winston were to sue first, he would open the door for pretrial discovery. It seems unlikely that Winston would want to testify under oath about the incident in question, his sexual history and his relationships with women. In addition, filing a lawsuit would likely be a major distraction for Winston, both in time and expense. Meetings with lawyers and answering depositions and interrogatories would take up a large portion of time, particularly for a player who is positioned for a future career in the NFL.

If sued first, however, Winston may decide to counter-sue the complainant for defamation. At that point, the legal process would have already begun, and a counter-suit could be used as a bargaining chip in any settlement talks.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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