A report in The Buffalo News linked the postponement on Tuesday of a grand jury review of rape allegations against Patrick Kane to financial settlement talks between attorneys for the Chicago Blackhawks star and his alleged victim.
“They have been in settlement discussions and both say they want their day in court, but both have vacillated from time to time and also said: Let’s just resolve it,” a source told the paper.
But even if the two sides come to an agreement, that’s not necessarily the end of Kane’s problems.
“The criminal proceeding is managed by the prosecutor and not the alleged victim,” attorney Eric Macramella wrote in Forbes. “Accordingly, any settlement that is brokered between Kane and the complainant does not bind the prosecutor. The prosecutor may still proceed with a criminal case against Kane, which includes sending it back to a grand jury. So the criminal matter and the civil matter are not directly connected.
“That being said, a civil settlement between Kane and the complainant may result in the complainant changing her mind and electing not to cooperate with the prosecution. While she may still be called to testify at a criminal trial, anything less than entirely convincing testimony would likely be fatal to the prosecution’s case unless there is other compelling evidence of wrongdoing. If the complainant elects not to cooperate or is an unwilling participant, the likelihood of a conviction is low particularly in cases of he said, she said. Remember, a rape prosecution relies heavily on the complainant’s testimony. If the complainant no longer wishes to pursue the matter, the prosecutor may drop the case.”
A settlement wouldn’t necessarily clear a path for a smooth transition back to hockey, either. If it got to that point, the NHL would likely pursue its own investigation into the alleged events with an eye on determining the extent of the damage that has been done to the league’s reputation. A suspension could be in order. But that’s tricky ground.
As Macramella notes, a settlement would certainly include a confidentiality agreement that precludes the alleged victim from cooperating with the investigation. And Kane conceivably could sue the NHL for defamation, “taking the position that his reputation was tarnished by the league by way of an unsubstantiated suspension."
While this is uncharted territory for the NHL, it’s far from fresh ground for professional sports. The NFL went through a similar situation with a highly decorated star five years ago. And while that case couldn’t be used as precedent, it does provide an interesting point of comparison.
Back in 2010, Pittsburgh Steelers quarterback Ben Roethlisberger was accused of sexual assault for the second time in a year. At the time, he was coming off a 2009 Super Bowl victory and ranked among the most popular and successful players in the league. Although the allegations were disputed by Roethlisberger and ultimately did not result in criminal charges being filed, Commissioner Roger Goodell made it clear that being exonerated legally was not the end of the matter because an NFL player must be “held to a higher standard.”
After interviewing Roethlisberger and the district attorney and reviewing information provided by police sources and other evidence obtained by NFL security, Goodell ultimately suspended the quarterback for six games (later reducing it to four for good behavior).
“The Personal Conduct Policy makes clear that I may impose discipline ‘even where the conduct does not result in conviction of a crime‘ as, for example, where the conduct ‘imposes inherent danger to the safety and well being of another person,’” Goodell wrote in his decision. “The Personal Conduct Policy also states that discipline is appropriate for conduct that ‘undermines or puts at risk the integrity and reputation of the NFL, NFL clubs, or NFL players.’ By any measure, your conduct satisfies that standard.
“Nothing about your conduct can remotely be described as admirable, responsible or consistent with either the values of the league or the expectations of our fans.”
NHL Commissioner Gary Bettman has a similar Personal Conduct Policy to rely on, and it’s one he’s been very proud of in the past.
“Our code of conduct is we expect you to do the right things and if you don’t we hold you accountable,” Bettman has said. “More important than that is I believe you need to be proactive.”
With training camps less than 10 days away, that time for proactivity is fast approaching.