What Potential Legal Action Could Kristaps Porzingis Face After Rape Accusation?
Dallas Mavericks forward Kristaps Porzingis is accused of raping and beating a woman while he was a member of the New York Knicks last year. Through his representatives, Porzingis claims the charge is categorically untrue and part of a fraudulent attempt to extort him of tens of thousands of dollars. This developing situation could lead to a multi-faceted legal fallout for the 23-year-old Latvian star.
What is thus far known about the alleged rape and the alleged extortion plot
According to Tina Moore of the New York Post, the alleged sexual incident occurred at around 2 a.m. on Wednesday, Feb. 7, 2018. Hours earlier, the 7’3 Porzingis had torn the ACL in his left knee during a game between the Knicks and the Milwaukee Bucks at Madison Square Garden. Porzingis has not played since that injury but is expected to return for the start of the 2019-20 season.
Citing a New York Police Department source, Moore says the accuser was a neighbor of Porzingis in Sky, a luxury apartment building in Midtown West. The accuser, whom the Post describes as an African-American woman in her 20s, claims that Porzingis invited her to his penthouse and proceeded to rape her. She also accuses Porzingis of repeatedly punching her in the face while the alleged rape occurred. The Post’s NYPD source describes the accuser as “believable.”
Late Sunday, TMZ reported on additional details shared by law enforcement sources. Those sources tell TMZ that Porzingis allegedly pinned the woman on a bed in his guest room, hit her multiple times in the face and spat on her. The woman also claims that he warned that he “owns” her. She further charges that he referred to her as “my slave.”
In sharp contrast, The Daily Mail reports that the NYPD has serious doubts about the allegation. The Mail’s NYPD source called the rape claim a “a ridiculous accusation without any merit.” The source added that Porzingis and the accuser “had a consensual sexual ongoing relationship ... that continued well after the alleged incident.” The source described any continuing relationship as “a huge red flag” and one that would potentially undermine the accusation of rape.
Different NYPD sources have thus offered media outlets very conflicting depictions of the controversy and of the accuser’s trustworthiness.
What is known is that Porzingis’s accuser did not contact the NYPD after the alleged incident. In fact, she waited until last Thursday, March 28—13 months and 3 weeks from the date of the alleged incident—to file a police report. The accuser, Moore writes, waited because of her financial negotiations with Porzingis. As recounted by the accuser, Porzingis offered to pay her $68,000, which she sought to cover the cost of her brother’s college tuition. In exchange, she would pledge her silence to Porzingis. The accuser says that Porzingis later reneged on the promise.
At this time, it is unknown if the accuser has sought medical attention to treat any injuries consistent with rape or consistent with forcible impact on her face and skull from repeated punches allegedly thrust on her by a muscular 7’3, 240-pound man. Similarly, it is unknown if she sought trauma counseling and other services typically made available to victims of sexual assault.
In a statement to the Post, Porzingis’s attorney, Roland Riopelle, unequivocally denies the accusation of rape. He also charges that the accuser has committed the crime of extortion. Extortion refers to using threats or other measures to unlawfully coerce another person (or business) to provide something of value. Riopelle says that he notified federal agents on Dec. 20, 2018 about the accuser’s “extortionate demands.”
Prior to the Knicks trading Porzingis to the Mavericks on Feb. 1, 2019, Riopelle notified the team and NBA about the rape accusation, Porzingis’s denial of that accusation and Porzingis’s claim of extortion. This notification, Riopelle says, occurred several months ago. Corroborating this account, ESPN’s Adrian Wojnarowski reports that both Mavericks and NBA officials were aware of this topic before the Mavericks traded for Porzingis.
Potential criminal law fallout for Porzingis
A rape accusation is an extremely serious claim. If the accusation is supported by evidence and not undermined by other facts, it could lead to criminal charges filed against Porzingis.
Similar to other jurisdictions, New York law defines rape as forcing another person to engage in sexual intercourse by a threat or use of physical force. A conviction of first-degree rape in New York would lead to a minimum prison sentence of five years and a maximum of 25 years. A second-degree rape charge, which carries a maximum prison sentence of seven years, would be more appropriate if the accuser was impaired by incapacitation and thus incapable of consenting. It’s unknown if Porzingis and the accuser were drinking or using any drugs that impacted their judgment.
A rape conviction has various other life consequences that extend beyond a prison sentence. A person convicted of rape in New York must register as a sex offender for at least 20 years. During that time, the New York State Division of Criminal Justice Services would regularly photograph the registered sex offender and require that the offender provide all screen names and email accounts.
Rape is not the only potential charge that Porzingis could face for alleged sexual misconduct. There are lesser charges under New York law for sexual intercourse without consent. For instance, the misdemeanor offense of sexual misconduct carries a maximum jail sentence of one year. First-time offenders of this law often receive probation and other non-incarceration penalties in lieu of jail. A person convicted of a misdemeanor sexual misconduct charge is still subject to classification as a registered sex offender. Porzingis, who his accuser says punched her in the face, could also be charged with criminal assault. There are multiple types of assault charges in New York and a conviction on any can lead to time behind bars.
The presence and scope of any incriminating evidence is unknown at this time. The NYPD’s Special Victims Unit will review pertinent communications—be they texts, emails or social media postings—by Porzingis, his accuser and any witnesses. If proven true that Porzingis invited his accuser to his penthouse, was the invitation made by a phone call or by a text or email? If the accuser is telling the truth about being raped, did she and Porzingis, or she and other persons, have any electronic communications about the incident? Officers will want to know the states of mind of both Porzingis and the accuser before and after the alleged incident. Similarly, officers will want to speak with Porzingis (assuming that has not already taken place).
New York City criminal defense attorney and former Manhattan prosecutor Jeremy Saland tells SI that several unknowns factors will play key roles in whether Porzingis is charged. One is whether the accuser (who law enforcement will refer to as a “complainant” given the filing of her complaint) suffered visible and documented injuries. “If 7’3 Porzingis repeatedly struck her in the face,” Saland says, “one would assume that she sustained some injuries even if those injuries are relatively slight ... it’s fair to assume that a beating by the hands of a 7’3 man would have left redness, swelling or bruising on her face.” If the accuser took photos, she presumably has provided them to the police.
Saland also highlights that law enforcement will review the behavior of the accuser in the incident’s aftermath. “Even in the unlikely chance that she suffered no injury to her face or head,” Saland notes, “did the complainant seek and procure what is commonly referred to as a rape kit? If so, what does it reflect? If she did not, why did she fail to do so? There may be a reasonable answer, but these questions and answers are of critical import.”
Whether the accuser informed others about the incident is also important. A witness who spoke with the accuser in the immediate aftermath could offer contemporaneous incident details that shed light on what took place. Likewise, if Porzingis told Knicks coaches or teammates, they too could offer insight.
The Daily Mail’s report that Porzingis and the accuser may have had a continued relationship after the incident would, if true, also prove meaningful. “If there was a relationship, even if non-sexual, and if it continued,” Saland observes, “that should give investigators significant pause when assessing the veracity of her complaint.”
The sequence of events also invites questions about timing. Porzingis’s representatives might draw a connection between Porzingis alerting federal agents and the accuser going to the police. “Porzingis reported to the FBI that he was a victim of blackmail and an extortive plot prior to the accuser going to the police,” Saland points out. “Is that why the complainant decided to go to the police now?”
Potential criminal law fallout for Porzingis’s accuser
Porzingis’s accuser could also face charges. If she engaged in extortive acts and if those acts were transmitted across state lines (such as her threatening Porzingis in a phone call when they were in different states), she could be charged under Title 18, Section 1951 of the U.S. Code. A conviction for federal extortion carries a maximum sentence of 20 years in prison. Alternatively, she could face charges for state extortion, which under New York law can carry multi-year prison sentences.
If it is true that Porzingis’s accuser sought money to pay for her brother’s college tuition, the requested money would seem unrelated to injuries. In contrast, if compensation was more for physical or emotional injuries, that dynamic would be more consistent with an out-of-court financial settlement where an injured person relinquishes a legal claim in exchange for payment.
Saland notes that, at least with respect to a state extortion charge, New York law allows for an affirmative defense whereby the accuser could say that she reasonably believed the charge of rape was true “and her sole purpose was to compel Porzingis to take action to ‘right the wrong’ that was the subject of the extortion, i.e., fix or make good on his sexual assault.” Here, however, the prospective payment was supposedly designed to address an unrelated family consideration (the cost of her brother’s college tuition).
Other potential fallout for Porzingis: civil lawsuit, NBA suspension, immigration law complications and morals clauses in endorsement deals
The most worrisome aspect of a rape allegation for Porzingis is that he could eventually be charged with a crime, convicted and sentenced to prison. While other possible legal consequences are far less frightening, they are nonetheless serious and potentially career-altering.
(1)Risk of a civil lawsuit
The accuser could sue Porzingis for battery, assault intentional infliction of emotional distress, false imprisonment and similar claims. A civil lawsuit, where the accuser would attempt to show by a preponderance of the evidence that Porzingis is liable, would face a much lower burden of persuasion than a criminal prosecution, where prosecutors would need to prove charges beyond a reasonable doubt.
Civil claims for battery and assault would depict Porzingis as having unconsented intercourse with his accuser and in a way that caused her to fear imminent harm. False imprisonment would correspond to Porzingis allegedly blocking his accuser from leaving the penthouse and returning to her own apartment. Intentional infliction of emotional distress would involve Porzingis engaging in extreme and outrageous conduct to inflict severe distress. If Porzingis really called his accuser “my slave” and other racially-charged statements, that would certainly help to evidence extreme and outrageous conduct.
A civil lawsuit would “only” threaten Porzingis with the prospect of paying monetary damages, but could still prove disruptive and reputation-harming. Depending on how far it advances, a lawsuit would involve the taking of testimony and sworn statements. It could even lead to a high-profile trial, much like Derrick Rose experienced in 2016 with sexual assault accusations brought against him.
Porzingis may be able to extinguish any potential litigation through relevant New York statutes of limitation. Plaintiffs who pursue claims for intentional torts in New York generally must do so within one year (this time period, however, can extend to five years if the defendant is charged with a sexual assault crime). This means that the accuser’s potential claims against Porzingis may have expired on Feb. 7, 2019. If so, she would now be deemed time-barred from commencing litigation.
(2)Risk of NBA taking action through joint policy on domestic violence
Porzingis must also worry about reaction by the Mavericks and the NBA to any adverse legal developments. Mavericks owner Mark Cuban, citing a directive from federal authorities, has declined comment. The NBA, similarly, has not taken any apparent action other than to investigate the matter.
Both the Mavericks and league will likely wait to see if developments warrant intervention. However, under the collective bargaining agreement, neither the Mavericks nor the league is required to wait for the legal process to play out.
At any point, the NBA could invoke its joint policy with the NBPA on domestic violence, sexual assault and child abuse. As detailed in Exhibit F of the collective bargaining agreement, “domestic violence” is defined to include “any actual or attempted violent act that is committed by one party in an intimate or family relationship against another party in that relationship.” The policy makes clear that threats of violence are contemplated under the term “domestic violence,” since a prohibited act “may include physical assault or battery, sexual assault, stalking, harassment, or other forms of physical or psychological abuse. It may also include behavior that intimidates, manipulates, humiliates, isolates, frightens, terrorizes, coerces, threatens, injures, or places another person in fear of bodily harm.”
The joint policy on domestic violence contains an intricate set of procedures, as detailed in a recent The Crossover article on former Boston Celtics guard Jabari Bird. Last September Bird was arrested by the Boston Police Department on domestic assault and battery charges. Bird is accused of kidnapping, strangling and battering his former girlfriend.
One risk to an NBA player participating in a joint policy investigation is that any records could potentially be subpoenaed by prosecutors. Also, at the discretion of NBA commissioner Adam Silver, an investigated player can be placed on administrative leave. In such a leave, the player is barred from playing and practicing but continues to be paid and receive other employment benefits.
The NBA has suspended one player for violating the new joint policy on domestic violence. In February 2018, the NBA suspended center Willie Reed for six games on account of his arrest for misdemeanor battery and his resolution with prosecutors by agreeing to enter a pretrial intervention program. Reed was accused of responding to his wife’s request for a divorce by twisting her arm, grabbing her hair and knocking her to the ground. Reed only served one game of the suspension before being waived by the Chicago Bulls in February 2018. He hasn’t played in the NBA since.
Particularly given that Porzingis is not playing this season, and given the possibility that Porzingis is a victim of a crime rather than a perpetrator of one, the NBA will likely wait to take any action. In the meantime, the league will conduct its own investigation (an investigation that probably began immediately once league officials learned of the controversy).
(3)Risk of adverse immigration consequences
Porzingis’s situation is complicated by his immigration status. Media reports indicate that Porzingis has resided in the U.S. since the summer of 2015. It was at that time when the Knicks drafted him fourth overall in the 2015 NBA Draft. Porzingis is able to work and reside in the U.S. through either a nonimmigrant visa or a green card (which would make him a permanent U.S. resident). A green card tied to employment normally takes several years to obtain. Whether Porzingis is in the U.S. through a nonimmigrant visa or a green card, he is ineligible to apply for U.S. citizenship until he has either spent three years in the U.S. as a permanent resident and marries a U.S. citizen or, without marriage, has spent five years in the U.S. as a permanent resident.
For Porzingis, a criminal charge as a non-U.S. citizen would create complications for him should he seek to travel to Canada to play the Toronto Raptors or should he travel to other parts of the world and then attempt to re-enter the U.S. Like other countries, Canada can deem a person inadmissible to enter on account of the person having a criminal record or pending charges. If Porzingis is charged, the Mavericks would need to retain immigration counsel in Canada to enable Porzingis to enter. Porzingis could also face difficulties attempting to re-enter the U.S. after leaving the country. The immigration process is complicated and not always predictable.
Further, any conviction on a violent felony can lead the U.S. Department of Homeland Security to begin proceedings that lead to the removal (deportation) of a person who resides in the U.S. on a nonimmigrant visa or green card. A non-citizen who is convicted can also be deemed inadmissible to re-enter the U.S.
(4)Risk of lost endorsement deals
Porzingis, who began his pro basketball career at age 15 with Baloncesto Sevilla, has signed multiple endorsement deals. His multi-year shoe deal with Adidas, for instance, reportedly pays him between $3 million and $6 million a year. These contracts contain morals clauses, which enable the endorsed company to terminate or suspend a deal on account of the endorser bringing disrepute on either himself/herself or the company. A company needn’t wait for a legal process to play out before invoking such a clause. In fact, as Tiger Woods experienced in the wake of his 2009 marital infidelity scandal, a controversy doesn’t require any criminal charges or even a lawsuit for a company to decide to invoke a morals clause.
Unless Porzingis is charged with a crime, it is unlikely that he will lose endorsement deals. As mentioned at several points above, Porzingis might be the victim of a crime rather than a perpetrator of one. Any endorsed company that cuts ties with Porzingis at this stage would risk being perceived as acting hastily and unfairly. A move along those lines could make it difficult for that company to attract other star players, who rival companies would recruit by stressing their loyalty to them.
Significance of the Mavericks trading for Porzingis despite the accusation
Some might question why the Mavericks, which last year were sanctioned for workplace misconduct related to the treatment of female employees, would trade for a player who is accused of a serious crime against a woman.
There are several possible explanations. One is that the Mavericks investigated the facts and determined that Porzingis’s narrative is sufficiently believable. Another is that that NBA has not taken any action against Porzingis despite reportedly knowing about the accusation for several months. The team could also take stock in the fact that Porzingis volunteered information about the accusation to the Knicks and NBA before the accusation became publicly known.
The Crossover will keep you posted on major developments in the Porzingis story.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.
