SI.com legal analyst Michael McCann breaks down Erica Kinsman's civil lawsuit against former Florida State star Jameis Winston.
Former Florida State quarterback Jameis Winston has a great deal to look forward to. On April 30, the Tampa Bay Buccaneers are expected to select Winston with the No. 1 pick in the 2015 NFL Draft. The 2013 Heisman Trophy winner would join a team with a coach, Lovie Smith, who might be the ideal influence for Winston as he aims for a less controversial pro career than he had in college. By virtue of being the first overall pick, Winston would also negotiate a pro contract that will likely include a signing bonus of approximately $15 million. Winston will also earn considerable income from an endorsement deal that he recently signed with Nike.
Winston also has much to fear as his NFL career approaches. Last Friday, a lawsuit was filed against Winston that will haunt him for some time to come. Erica Kinsman claims that Winston raped her while the two were students at FSU in 2012. Unless Winston defeats the lawsuit or reaches an out-of-court settlement with Kinsman, the lawsuit could damage Winston’s NFL career and potentially lead to a re-opening of a criminal investigation into Winston’s conduct.
Explaining Kinsman’s lawsuit
Kinsman’s lawsuit revisits well-covered accusations. She contends that after meeting Winston at Potbelly’s bar in Tallahassee on December 6, 2012, the two, along with Winston’s teammates Chris Casher and Ronald Darby, took a taxi to Winston’s apartment. Kinsman asserts that Winston then raped her. She also alleges that Casher recorded at least some of the incident on his iPhone, which he later discarded, and that Darby posted a message on Facebook in which he expressed regret (it is unclear whether Darby’s Facebook post was in any way related to the incident). Kinsman also recalls telling family and friends that she had been raped.
Kinsman’s complaint contains four counts: sexual battery, assault, false imprisonment and intentional infliction of emotional distress. These are traditional claims in a civil litigation accompanying an alleged sexual assault. The sexual battery and assault counts refer to Winston allegedly engaging in a sexual act without Kinsman’s consent and placing her in fear of further sexual violence. False imprisonment concerns Kinsman’s contention that Winston held her against her will in a confined location (Winston’s bedroom or apartment). Lastly, in claiming that Winston intentionally inflicted emotional of distress, Kinsman insists that Winston’s conduct was extreme and outrageous. Kinsman demands monetary damages (the only available remedy) to cure the harms she maintains he inflicted upon her.
Should Kinsman’s lawsuit advance to trial, she would need to persuade jurors by a preponderance of evidence—meaning “more likely than not” or “greater than 50 percent certainty”—that her claims are correct. This means that if jurors found Kinsman more believable than Winston, she would likely win the trial. Kinsman would also call family and friends to the stand to testify as a way of bolstering her account. Further, she might call officials from FSU—which she is suing in a separate lawsuit—if those officials might try to deflect blame onto Winston.
But if jurors instead found Winston more believable, then Winston would likely win the lawsuit. The same is true if jurors could not determine which of the two is more believable. If jurors believe that the evidence and testimony only leads them to 50 percent certainty in Winston’s fault, then Winston would prevail.
Winston’s likely defense
Winston can attempt to rebut Kinsman’s lawsuit in a number of ways. Foremost, Winston will categorically deny that he raped Kinsman. Winston does not contest that he had intercourse with Kinsman, but he maintains it was consensual.
To bolster his defense, Winston will highlight that he was not charged with the crime of sexual battery. While there are serious questions about the responsiveness and thoroughness of the Tallahassee Police Department’s investigation into the incident, the fact remains Winston was not charged with a crime, let alone convicted of one. Along those lines, during a press conference in December 2013, Florida State Attorney Willie Meggs explained that the presence of another man’s DNA on Kinsman and lingering questions about Kinsman’s memory created too much doubt to charge Winston with a crime. To be clear, Meggs avoided declaring that Winston was “innocent,” as that was not the purpose of his inquiry. Instead, Meggs stressed that in absence of sufficient proof, Winston could not be charged with a crime.
Also aiding Winston’s defense is the December 2014 decision of former Florida State Supreme Court Justice Major B. Harding in the Florida State University Code of Conduct hearing. Winston faced four charges related to sexual misconduct. Harding ruled for Winston primarily because he did not regard Kinsman’s account as more believable than Winston's. Harding also cited a lack of physical evidence. Harding highlighted, for instance, testimony by a nurse who indicated, “Ms. Kinsman had vaginal tenderness and redness that could be consistent with either a sexual assault or consensual sexual intercourse.”
Winston's attorney, David Cornwell, can also aggressively use pretrial discovery and cross-examination to raise questions about Kinsman's account. Cornwell will try to lead Kinsman to acknowledge any defects in her memory of what took place. He will also highlight toxicology reports which indicate that Kinsman had not been drugged and had not consumed an excessive amount of alcohol. Cornwell might also attempt to introduce evidence of Kinsman's past sexual behavior, although courts often disallow such testimony on grounds that it would risk causing unfair prejudice.
Kinsman’s lawsuit would face substantial hurdles in a trial. Still, the applicable burden is merely preponderance of evidence, rather than beyond a reasonable doubt of guilt. While Harding found that Kinsman failed to establish a preponderance of evidence, jurors—who would have very different backgrounds than a seasoned lawyer and former Florida Supreme Court Justice like Harding—could view the facts and law differently. A civil trial would also feature different rules than a university code of conduct hearing and would address similar, but still distinct legal theories of fault. These factors present risk for Winston that despite his victory in the code of conduct hearing, he could lose a trial and be forced to pay Kinsman a considerable amount of money.
Other potential dangers for Winston
Kinsman’s lawsuit does not need to advance to a trial for it to threaten Winston with substantial legal risk. As part of pretrial discovery, Winston would be deposed under oath and forced to answer questions from Kinsman’s attorneys. To date, Winston’s only testimony about the incident occurred during the code of conduct hearing, where he answered a few questions posed by Harding. Winston had little to say, other than to insist that he did not sexually assault Kinsman and that she gave consent “verbally and physically,” with the physical form of consent indicated by her “moaning.”
It is safe to assume Winston would face far more hostile questioning by Kinsman’s attorneys during a deposition. Along those lines, Kinsman has hired attorney John Clune to represent her in this lawsuit. Clune, who represented a woman who accused Kobe Bryant of rape, is regarded as a very aggressive litigator. He would ask Winston challenging questions and follow-ups in hopes of leading Winston to self-incriminate. If Winston did so, he would surely lose the case. Winston could instead invoke his Fifth Amendment right to avoid answering questions that might lead to self-incrimination. The downside for Winston to such an approach, however, would be 1) the public might regard a refusal to answer as a sign of guilt; and 2) jurors in a civil trial would be instructed that the can infer Winston’s testimony would have been harmful to his case if he had not invoked his Fifth Amendment right against self-incrimination.
Winston could lose a lot more than a civil trial if his deposition does not go well. Under Florida’s statute of limitations for the crime of sexual battery, Winston could still be charged until at least December 2016. The “Double Jeopardy” clause of the Fifth Amendment does not protect Winston from being charged because Double Jeopardy does not apply when one is only investigated for a crime. While it is unlikely law enforcement officers would reopen an investigation into Winston, they would have access to Winston’s testimony in the Kinsman lawsuit.
Winston could also face punishment by the NFL if he loses a trial or provides testimony that suggests he bears some fault, legal or otherwise. Although Winston’s alleged misconduct occurred long before the start of his NFL career, Winston is likely aware of the NFL’s decision in 2011 to suspend former Ohio State quarterback Terrelle Pryor—whom the NCAA had suspended for selling championship rings and receiving free tattoos—before Pryor’s NFL career even started. While the NFL insisted Pryor’s suspension was due to Pryor “undermining the integrity of our draft eligible rules” rather than NCAA rules, Winston should be troubled by the possibility that conduct before one becomes an employee of an NFL team can trigger NFL sanction.
Lastly, Winston could jeopardize his endorsement deal with Nike if damning information surfaces through Kinsman’s lawsuit. Major companies like Nike require celebrity endorsers to sign broadly worded “morals clauses” that allow the companies to suspend or exit their endorsement deals in the event the endorser embarrasses the company.
Winston is unlikely to countersue Kinsman
Last December, Cornwell suggested his client might countersue Kinsman. If Winston went ahead and filed a countersuit, one probable claim would be defamation. Winston would contend that Kinsman has falsely accused Winston of a crime and damaged his reputation. Winston might also sue Kinsman for malicious prosecution under the theory that she filed a false lawsuit against him to harm his public image right before the NFL draft.
Winston countersuing is unlikely for a variety of reasons. First, he is a public figure, which means that he would have to show that Kinsman exhibited “actual malice” in claiming that he raped her. This means he would need to prove that Kinsman not only falsely accused him of rape, but she did so knowingly. Given that Kinsman has evidence she is telling the truth, it would seem improbable that Winston would win on a defamation countersuit. Second, if Winston sues Kinsman for defamation, he would open the door for Kinsman to introduce relevant character evidence against him. This could include past missteps by Winston—such as accusations by other women against him—that would otherwise be inadmissible in a trial. Third, malicious prosecution claims are difficult to prove, particularly when the case brought by the plaintiff (Kinsman) is supported by some evidence and witness testimony.
Will there be a settlement?
The most likely conclusion to Kinsman’s lawsuit is that she reaches an out-of-court settlement with Winston in which he agrees to pay her a considerable amount of money in exchange for her dropping all legal claims she may have against him. The settlement would likely not include any admission of fault by Winston, who would be sensitive to concerns that an admission of fault would trigger an NFL suspension or termination of his endorsement deals. Winston, as discussed above, has multiple reasons to avoid testifying. Even if he is telling the truth, the 21-year-old might struggle to answer questions from seasoned lawyers.
On the other hand, Winston’s attorneys may decide that Winston should not “pay up” to diffuse a lawsuit that they consider to be without merit and timed to inflict the most harm to Winston’s image. Winston’s attorneys appear to believe that Kinsman’s attorneys have engaged in strategic timing to maximize negative publicity. For instance, a day before Winston was presented with the Heisman trophy on December 14, 2013, Kinsman’s attorney Patricia Carroll held a press conference in response to the December 5, 2013 announcement by Meggs that Winston would not be charged. Also, hours after Winston declared for the NFL draft on January 7, 2015, Kinsman filed a Title IX complaint against FSU.
Winston’s attorneys might also reason that in spite of calls that Winston should drop out school before participating in the code of conduct hearing (disclaimer: I advocated he do so), Winston ably handled the code of conduct hearing and was not found at fault. If Winston had dropped out of FSU, some would have considered it an admission of fault. The same would be true if Winston now settles with Kinsman.
One thing is for sure: Winston and his legal team have some hard choices ahead and they will impact much more than his NFL career.
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.