Saturday September 3rd, 2016

Did Derrick Rose have sex with a woman who neither consented nor was sufficiently sober enough to consent? Or was the sexual encounter between Rose and a woman whom he dated for two years one in which consent was provided or one in which Rose reasonably believed was consensual?

These questions lie at the heart of a civil lawsuit filed by the woman, whom court papers call “Jane Doe” to protect her identity, against Rose in California. The case, which centers on a sexual encounter between Rose and Doe in August 2013, is scheduled to go to trial in Los Angeles on Oct. 4.

This case is a civil litigation, not a criminal prosecution

To be clear, Rose was not charged with a crime over the sexual incident and his legal dispute with Doe is a civil matter, not a criminal prosecution. If Rose is found liable at the trial, he will owe Doe monetary damages, but he will not face a criminal penalty. Doe, whose attorneys emphasize felt “ashamed and embarrassed by what had happened to her,” did not report the incident to the police or seek hospitalization. Along those lines, there is no record of a police investigation or a grand jury proceeding into the incident. The evidence for this civil case is based mainly on conflicting witness statements and accompanying electronic messages.

While in theory Rose could still be charged with a crime under California law, which has a six-year statute of limitations for most types of alleged sexual assaults, it is extremely unlikely that would happen.

Judge denies Derrick Rose’s motion to dismiss sexual assault case

A brief overview of the alleged incident and accompanying fallout

In the fall of 2011, the NBA had locked out players as part of a labor dispute with the NBPA. Rose would spend a considerable amount of time at a rented home in Beverly Hills during this time. It was there that he hosted a party and met Doe. They began dating, they attended sporting events and parties together, and sexual relations were part of their relationship. Rose would spend more time in Los Angeles in 2012 and 2013 than he had anticipated. This was due to a gruesome knee injury he suffered in Game 1 of the Chicago Bulls-Philadelphia 76ers playoff round in April 2012. As Rose rehabbed—he would miss the entire 2012–13 NBA season with a torn ACL—he and Doe were often together.

During their relationship, Doe contends that Rose repeatedly asked her to participate in group sex activities, and to perform masturbatory acts on Skype. She says she refused these requests, noting faith-based objections. Doe’s complaint says that Rose was insistent upon “involving others in their sex life, in particular, strippers and other couples.” Doe also learned that Rose had a second girlfriend in Chicago. Doe’s complaint says that she initially refused to visit Rose in Chicago, but relented and visited him in May 2013. At one point while in Chicago, Doe contends, Rose demanded that she and one of her female friends, who had joined Doe on the trip, “stroke each other” while in his presence. 

Rose and Doe’s relationship continued to encounter problems in June 2013. It was at that time that Rose visited Doe in Los Angeles and, according to Doe, requested that she join him in a group sex act. She refused, texting, “u are clearly showing me our relationship is based on your sexual fantasies.” Doe acknowledges that, despite finding some of Rose’s sexual requests unwelcomed, she told Rose she missed him. Rose, however, reportedly ended the relationship in July 2013, reportedly texting her, “We good but I’m not messing with u like that anymore.”

Although their relationship seemed to be over, Rose and Doe remained in some degree of communication in the days and weeks that followed their breakup. On August 26, 2013, Rose invited Doe and a friend, Jessica Groff, to his Beverly Hills home. Doe consumed a significant amount of alcohol before arriving at Rose’s home—she allegedly finished a bottle of red wine. She and Groff continued to consume alcohol after arriving at Rose’s house, where they drank tequila. Doe also claims that her drinks were drugged. At this time, Rose was with his two assistants, Randall Hampton and Ryan Allen. Groff’s sworn statement claims that Allen demanded that she take her clothes off, which she refused. Groff and Doe then left Allen’s home. Doe would return to her apartment.

While back at her apartment, Doe and Rose exchanged text messages. Doe wrote to him, “You need to come to me right now,” which prompted Rose to ask that she return to his house. After she declined his invitation to return to Beverly Hills, Rose texted, “We on our way.” This indicated that Rose, Hampton and Allen were heading to her apartment. Rose seemed to seek sex. In a deposition, Rose replied, “we men” when asked about his intentions. Doe says she then vomited and fell asleep on her bed.

When Rose arrived at Doe’s apartment, Doe says she did not answer the door. Rose and Allen then sent text messages to Doe, including Allen’s “Wake yo ass up” text.

At this point in the facts, there are two very different accounts.

According to Doe, she was non-responsive to the texts and the knocks on the door. Rose and his two assistants then reportedly observed an opening into the apartment and entered it, where they found Doe incapacitated on her bed. Allegedly, the three men then had sex with Doe, who says she remembers being penetrated by all three men without granting consent.

When she woke up the next morning, Doe says she felt extremely sick, her dress “was up around her neck,” and lubricant “was all over her body.” She also had internal pain in her vagina and saw used condoms around the bed.  Doe would shower and report to work late. A coworker advised her to call the police and seek hospitalization, including taking a pregnancy test and completing a rape kit, but Doe says she felt “ashamed and embarrassed.” She also feared that Rose was “monitoring her cell phone.” In addition, Doe texted Allen to express disappointment about the previous evening. “[Y]all knew I wasnt in my right state of mind,” Doe wrote, “I was intoxicated and u guys were sober and could have stopped at any time. I had to look back at my text messages to get an idea of why all of u showed up at my home I after I was already safe sleep in my bed. I hope that never happens to any of your loved ones. God bless you.

Rose’s account differs from Doe’s in numerous ways. Most importantly, Rose maintains that Doe clearly invited him, Allen and Hampton over to her apartment, that Doe consented to having sex with Rose and that Doe was sufficiently sober to grant consent. He also highlights that earlier in the evening Doe had texted over a suggestive photo of herself in a “sex belt.” Rose also claims that he and Doe had sex when Doe visited Rose’s house (a claim disputed by Groff) and he stresses that Doe’s own expert witness admits there’s no evidence drugs were placed in Doe’s drinks.

Rose’s portrayal of his arrival at the apartment is also radically different. He avers that Doe was not only awake and lucid but that she “greeted” him, Hampton and Allen and then “let them into the building and escorted them to her apartment.” Further, Rose places emphasis on Doe’s alleged lack of recollection of whether she said no or whether she asked Allen or Hampton to stop. He also notes that Doe’s roommate was in the adjacent bedroom “and did not hear anyone make noises or scream.” Doe, moreover, texted Rose hours after the alleged rape with seemingly mundane concerns over reimbursement for the sex belt and Rose not paying for Groff’s cab fare.

Doe would eventually lose her job, which she attributed to the mental anguish of an alleged rape. On Aug. 26, 2015—two years after the alleged rape and before the statute of limitations on a lawsuit would expire on certain possible claims—Doe filed a lawsuit in Los Angeles County Superior Court. The case would later be transferred to the U.S. District Court for the Central District of California.

The lawsuit and defenses

In a civil lawsuit, the plaintiff must only prove the elements of cause of action by a preponderance of evidence, meaning more likely than not. Should the Doe v. Rose lawsuit go to trial, it would largely turn on whether jurors found Doe or Rose more believable. This is a sharp contrast to a criminal prosecution, where prosecutors—rather than private attorneys representing a plaintiff—must prove the elements of a crime beyond a reasonable doubt. The burden for a criminal conviction is substantially higher than the finding of civil liability. This means that should Rose be found liable in this civil action, it would not mean that he should also be convicted of a similar crime. Understanding the difference in burdens is crucial when looking at the law.

Doe’s lawsuit contains several claims under California law, including sexual battery, battery, trespass, violation of California’s gender violence law (California Civil Code section 52.4) and intentional infliction of emotional distress. The lawsuit seeks $21.5 million in damages. 

The two battery claims require Doe to prove that Rose had sexual contact with her without consent. Both sides agree that sexual contact occurred, and thus the crucial legal question is whether she consented. Doe and Rose obviously disagree on that point. Even if she did not consent, if Rose reasonably believed she had consented, a jury could find in his favor. On the other hand, Rose’s acknowledgment that he went over for the purpose of having sex could be problematic if jurors believe he was steadfast on having sex regardless of consent. Testimony about Doe’s level of intoxication would also prove important.

Court documents: Derrick Rose denies sexual assault allegations

The trespass claim is similarly in sharp dispute. While Rose portrays Doe as welcoming him into her apartment, Doe says that Rose broke into the apartment while she was unconscious. Doe clearly invited Rose over, but if she was—as she claims—non-responsive to Rose when he arrived, a jury could conclude she revoked consent for him to enter. Again, the believability of witnesses is crucial in determining which account is more likely to persuade jurors.

Rose must also defend against a civil claim that he committed gender violence by committing an act that would constitute either a criminal offense involving physical force or a “physical invasion of a sexual nature under coercive conditions.” Like with the battery claims, whether a jury believes that Doe consented is critical to the legal analysis.

Doe also insists that Rose intentionally or negligently inflicted emotional distress upon her. If the jury believes that Rose had sexual contact with Doe without her consent, there is an excellent chance the jury will also find that Rose caused her extreme and severe distress by his conduct.

Rose hoped to have the lawsuit removed from court by this summer. He motioned U.S. District Judge Michael Fitzgerald for a summary judgment in his favor, but Judge Fitzgerald denied the motion in July. This was not surprising given that Rose and Doe are in sharp disagreement about the facts and given that the standard for summary judgment requires its denial when—as in this litigation—there are genuine disputes as to material facts. To be clear, a denial of a motion for summary judgment should not be confused with a judicial judgment on those facts. Rose could still win a trial after losing a motion for summary judgment.

Ron Elkman/Sports Imagery via Getty Images

The case could settle before trial—and Rose has good reason to seek a settlement

Particularly with high profile entertainers, be they athletes or actors, attorneys often advise that a settlement is a better course of action than being a defendant in a trial. In a settlement, the defendant pays the plaintiff a sum of money and in exchange the plaintiff drops the lawsuit. If Rose is not being truthful, he has an excellent and obvious reason to settle before he faces a judge and jury.

Alternatively, if Rose is being honest, a settlement might still make sense. While his trial would not be televised—cameras aren’t allowed in federal courtrooms—a captive media would surely attend the trial and closely report on it. During a trial, Rose would have to answer sensitive questions while under oath about his sexual relations and sexual history and face accusations that he sexually assaulted a woman.

A trial would also require Rose to miss some of training camp with his new team, the New York Knicks. The Knicks’ first preseason game will be against the Houston Rockets on Oct. 4, the same day that Rose’s trial is scheduled to start.

The 27-year-old Rose, who has earned $94 million during his NBA career, certainly has the financial wherewithal to offer a sizable settlement. Whether Rose is willing to do so, and whether Doe would accept, are both unknown.

The Knicks, the NBA and companies that Rose endorses are all watching

Rose’s legal controversy is not occurring in a vacuum. His employment and endorsement portfolio could face adverse consequences, particularly if he loses the trial.

The Knicks, for instance, could suspend Rose for conduct detrimental to the team. Alternatively, NBA commissioner Adam Silver could invoke Article 35 of the NBA constitution and suspend Rose for “conduct that does not conform to standards of morality or fair play, that does not comply at all times with all federal, state, and local laws, or that is prejudicial or detrimental to the NBA.”

Rose also has lucrative endorsement deals that could be threatened. A few years ago, he signed a 13-year, $185 million endorsement deal with Adidas. While the contract is not a public record, it almost certainly contains a moral clause that would allow Adidas to suspend or even terminate the deal under certain conditions. As I explained in my recent article on Ryan Lochte, often morals clauses say something to the effect of the athlete must “act at all times with due regard to public morals and conventions” and that the endorsed company can exit the deal if the player commits “an offense involving moral turpitude under federal, state or local laws or which brings the athlete or company into public disrepute, contempt, scandal or ridicule, or which insults or offends the community.”

Don’t expect any punishment for Rose for the time being. The Knicks, NBA and Adidas are likely to wait to see if the legal claims against Rose advance. After all, if he did not break the law, then it would be unfair to punish him. Still, potential problematic consequences with his team, league and endorsed companies might offer Rose greater motivation to strike a settlement before the trial date.

Michael McCann, SI's legal analyst, is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

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