Tuesday November 3rd, 2015

The woman who accused Chicago Blackhawks star Patrick Kane of rape has told authorities that the high-profile investigation has caused tremendous stress for her and her family, and that she no longer wishes to participate.

According to a report in The Buffalo News, the alleged victim signed a document called an “affidavit declining prosecution,” which is now under consideration by District Attorney Frank A. Sedita III.

Sedita will ultimately make the call on whether the case goes forward or not, but sources told The News that he has decided not to present evidence of the allegations to a grand jury for possible indictment. And that, according to SI.com legal expert Michael McCann, almost certainly ends the potential criminal case against Kane.

“While it remains theoretically possible for a grand jury to indict Kane and for the Erie County District Attorney’s Office to then prosecute him, it is generally difficult to secure a conviction in a rape or domestic violence case when the accuser will not testify and when there is an absence of supplemental evidence, such as DNA, that would corroborate the accuser,” says McCann, the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.

Evidence tampering: What it means to the Patrick Kane rape case

“The case against Kane is also compromised by the bizarre development in September involving a purported rape kit wrapper that may have been supplied by the accused’s mother. The Buffalo News also reports that results from the actual rape kit failed to support the accuser’s contention that a rape occurred. Taken together, these matters raise serious questions about the strength of a potential case against Kane. This is important because prosecutors typically do not wish to prosecute a defendant unless they are certain that they can convince all members of a jury that the defendant is guilty beyond a reasonable doubt.”

Although the accuser’s decision appears to free Kane from criminal concerns, it doesn’t necessarily bring the matter to a close.

“Her withdrawing cooperation in a criminal investigation doesn’t preclude her filing a civil lawsuit over the same underlying accusations,” McCann says. “In a civil suit, she would likely bring four claims—battery, assault, false imprisonment and intentional infliction of emotional distress. She would contend that Kane put in her fear of imminent harm (assault) and had sexual intercourse without her consent (battery). She would also insist that Kane prevented her from leaving the room in his home where the alleged rape occurred (false imprisonment) and that he willfully caused her severe emotional distress through extreme and outrageous conduct (intentional infliction of emotional distress).

“The burden in a possible civil case brought by the accuser would be much lower than in a criminal prosecution against Kane,” says McCann. “While the Erie County District Attorney’s Office would need to convince a jury beyond a reasonable doubt that Kane committed a crime, his accuser would only need to convince a jury that it is more probable than not that he violated a civil law.”

If the accuser chose to go that route, a public trial would be a long shot. McCann says that civil lawsuits typically are dismissed or settled before they ever get to that point.

“Kane’s attorneys would first try to have the case dismissed,” McCann explained. “If that fails, it is possible, if not probable, that a settlement would be reached whereby Kane would pay the accuser an undisclosed amount of money in exchange for her agreeing to relinquish any civil claims she may have against him. A settlement would likely also contain a confidentiality clause that bars both Kane and his accuser from ever speaking again about the incident.”

It might also leave open the question of Kane’s guilt, but that’s a trade-off someone in his position might have to make.

Evidence 'hoax' means Patrick Kane less likely to be charged

“The legal process would require a considerable amount of his time and would remind the public—including his employer and fans—of an incident that he would probably otherwise want to put behind him,” McCann says. “To be sure, going to trial and being found not liable would be seen as reputation vindication for Kane, but he would have to weigh the associated costs in terms of time, energy and money in pursuing that vindication.”

Although there’s no indication yet that the accused might pursue this route, the clock is already ticking. Under New York law, the accuser has until Aug. 2, 2016, one year from the date of her original complaint, to file a lawsuit against Kane. Afterwards, the relevant statute of limitations would expire and she would be barred from suing.

Kane himself could keep the matter alive by choosing to sue his accuser, and perhaps others connected to her (such as her mother), for defamation. “He would argue that public statements made about him have been untrue and damaging to his reputation,” McCann says. “Assuming he is telling the truth, Kane would have a good argument that false statements made about him have damaged his reputation. Yet even in that scenario, Kane may not find bringing a defamation suit to be a sensible use of his time.

“For starters, he is a public figure and would thus need to establish ‘actual malice’ in order to win a defamation lawsuit. This means that Kane would need to show statements made about him were not only untrue, but were made by someone who knew they were untrue. The accuser might insist that she genuinely believed that a rape occurred. Even if a rape didn’t occur, the accuser would not have exhibited actual malice if she had plausible grounds to believe that she had been raped.

“A defamation lawsuit would also take up a considerable amount of Kane’s time. Through the pretrial discovery process, it might also require Kane to share, while under oath, intimate questions about his personal life. Also, even if he prevails in a defamation lawsuit, it’s not clear that his accuser or others connected to her would posses the financial wherewithal to pay off a civil judgment. A victory for Kane could prove more symbolic than anything else.”

Symbolic or not, a victory now appears to belong to Kane.

The numbers game

Ryan Johansen, Sidney Crosby among NHL’s 10 biggest duds of October

• Maple Leafs goalie James Reimer clearly likes work. After beating the Dallas Stars on Monday night he now has a career record of 13-2-2 when making more 40 or more saves in a regular season game.

• ​Stars sniper Jamie Benn is now the franchise’s first player to score 10 or more goals in the team’s first 12 games of a season since Hall of Famer Mike Modano in 1993-94.

• Of the 23 coach’s challenges so far this season, 17 calls have been upheld. Six have been overturned.

Hot links

• Kevin Dupont looks back at a time when chance encounters athletes and their fans were just part of the game. Great stuff, as always, from KPD.

• Patrice Bergeron is a terrific hockey player but an even better human.

• Frank Seravelli looks at concussions and the way they are reported by different teams around the league.

• Former NHLer Marco Sturm explains the challenges of trying to rebuild the German national program.

• A former production staffer from The Office is trying to get a documentary on the Buffalo Sabres off the ground. Here’s how you can help.

• With the speed and physicality of the game taking a toll, NHL teams are trying to figure out how to prolong the careers of veteran defensemen.

• Not quite good enough to make the roster of the Chicago Blackhawks last season, but want to look the part by flashing a Stanley Cup championship ring? Here’s your chance.

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