- The re-opened investigation into the alleged incidents of a 2009 night in Las Vegas has led to city police seeking Cristiano Ronaldo's DNA. What might that mean for case, and will the Juventus and Portugal star be compelled to provide it?
Las Vegas Metropolitan Police Department’s investigation into whether Juventus star Cristiano Ronaldo raped a woman in a penthouse at the Palms Casino Resort in June 2009 has become an international legal matter.
As first reported by The Wall Street Journal, authorities in Law Vegas have issued a warrant that, if enforced, would compel Ronaldo to provide a DNA sample. The DNA sample would be compared to DNA found on the dress of his accuser, Kathryn Mayorga, on the night of the alleged incident in question. Given that Ronaldo works and spends much of the year living in Italy, Las Vegas authorities are attempting to convince the Italian legal system to execute the warrant. This situation raises a number of procedural issues and is unlikely to be resolved soon.
Here's a closer look at where the re-opened criminal investigation into Ronaldo stands and what the latest developments mean:
Brief primer on the rape allegations
Last September, Mayorga, a Nevada resident, sued Ronaldo for battery, intentional infliction of emotional distress and nine other claims in Clark County District Court. Mayorga’s complaint, as authored by attorney Leslie Stovall, alleges that Mayorga met Ronaldo at the Rain Nightclub in the Palms on the evening of Friday, June 12, 2009. Ronaldo then invited Mayorga and others up to his penthouse suite. While in one of the suite’s bathrooms, Mayorga claims that Ronaldo exposed himself and then committed anal rape on her. Mayorga also recalls Ronaldo apologizing to her afterwards.
Hours later, Mayorga reported the incident to the Las Vegas Metropolitan Police Department (LVMPD). She identified Ronaldo as the rapist. Mayorga also sought hospital care for rectal injuries and trauma. Several weeks later, a detective from the LVMPD interviewed Mayorga. Mayorga suggests that the detective advocated more than listened, discouraging her from pursuing the matter further. The detective, Mayorga recalls, warned her that if she went public with her accusation, she would be depicted as trying to extort money from a popular and affluent soccer star.
The extent to which the police probed the incident is unclear; Mayorga’s complaint suggests the investigation was hardly thorough and seemed designed to obfuscate the situation. In fact, Mayorga contends that an unidentified person in the LVMPD collaborated with representatives of Ronaldo to diminish the chances of an exhaustive inquiry. One thing is clear: Ronaldo was not charged with a crime.
The combination of (alleged) sexual assault and indifference, if not obstruction, from law enforcement caused Mayorga to suffer post-traumatic stress disorder and depression. Mayorga also retained an attorney, whose name has only been identified by the pseudonym Mary Smith. The attorney allegedly advised Mayorga to sign a settlement agreement with Ronaldo and encouraged her to put the incident behind her. The agreement called for Ronaldo to pay Mayorga $375,000. In exchange, Mayorga contractually relinquished any legal claims she may have had against Ronaldo. In addition, Mayorga agreed to permanently delete any electronic and written evidence and name every person with whom she had confided about the incident.
Mayorga now insists that the settlement agreement is unenforceable. She argues that her compromised mental and emotional state at the time she signed the agreement prove she signed it without the sufficient legal capacity to do so. Mayorga also insists that Ronaldo failed to meet a condition of the agreement, namely the requirement that he personally read a letter from Mayorga.
Through his own statements and those of his attorneys, Ronaldo categorically denies Mayorga’s claim that he raped her. He acknowledges that he had a sexual encounter with Mayorga but insists that it was consensual. In addition, and as explained in a previous analysis of the case, courts are often unwilling to void a settlement. It remains to be seen if Mayorga will be able to acquire a sufficient amount of admissible evidence and credible testimony to prove her allegations.
Role of the criminal investigation
While Mayorga’s lawsuit faces hurdles, the LVMPD need not rely on the lawsuit’s success in order to assess the criminal law implications of Mayorga’s allegations. To that end, the police department has re-opened its investigation into whether Ronaldo committed sexual assault. Sexual assault would be a serious felony charge under Nevada law. A conviction for it would carry a life sentence, with a chance of parole after 10 years or, if the victim suffered substantial bodily harm, 15 years.
One might be skeptical of the LVMPD’s new investigation given the department’s supposedly middling inquiry back in 2009. However, the LVMPD is now under completely different leadership. Also, Mayorga going public with her claims, both in terms of her lawsuit and her high-profile interview with German outlet Der Spiegel, implicitly places pressure on the police to conduct a substantive probe.
In addition, it’s not too late for the LVMPD to investigate Ronaldo and, potentially, charge him with a crime. Under current Nevada law, the statute of limitations for sexual assault is 20 years. This means that a sexual assault that occurred in Las Vegas at some point since 1999 could conceivably lead to charges.
.@si_soccer’s covering of Kathryn Mayorga’s story & rape allegations against Cristiano Ronaldo: @McCannSportsLaw’s legal analysis: https://t.co/5CXKz7T066@GrantWahl & myself had @DerSPIEGEL’s @derWinterbach regarding their extensive, detailed piece: pic.twitter.com/owEXzkZ7fH— Luis Miguel Echegaray (@lmechegaray) October 3, 2018
Difficulties in investigating Ronaldo
There are several reasons to suggest that Ronaldo will not be charged with a crime.
First, it does not appear that law enforcement, after hearing from Mayorga in 2009, believed that Ronaldo committed a crime. Not only were charges not brought, but if Mayorga’s depiction of her interactions with police officers is accurate, her conversations did not propel the LVMPD to look much further into the matter. It’s unclear if this reticence related to law enforcement having uncertainty or doubts about Mayorga. Alternatively, the officers may have felt discomfort with the idea of investigating a celebrity like Ronaldo. Or perhaps they doubted that rape could be proven in this instance. Regardless of the accompanying explanation(s), the fact that charges were not brought in 2009 is an encouraging sign for Ronaldo.
Second, cases usually become more difficult to prosecute the longer time passes. This alleged incident took place almost a decade ago. The delay presents logistical barriers for prosecutors, who would ultimately need to convince jurors, beyond a reasonable doubt, that Ronaldo committed a crime. Some of the witnesses, including those who were with Ronaldo and Mayorga on the night in question, might no longer be available. Alternatively, they may be available but no longer recall what happened. Along those lines, our ability to accurately recall events usually worsens as those events recede into memory.
It’s also not clear to what extent text, email and other types of electronic evidence have been preserved. This is especially problematic for the LVMPD given that Mayorga agreed in the settlement to destroy evidence. To be clear, the passage of time does not preclude a successful prosecution–for example, in 2018 jurors in Pennsylvania convicted comedian Bill Cosby on three counts of drugging and sexually assaulting Andrea Constand in 2004–but it adds a hurdle.
Third, Ronaldo is far outside of the reach of the LVMPD, whose jurisdiction is the City of Las Vegas and Clark County. While the Extradition Clause of the U.S. Constitution (as found in Article IV, Section 2, Clause 2) obligates states to deliver fugitives to other states, the clause has no impact on other countries. Ronaldo can only be compelled to cooperate if a court where he is located mandates it.
While LVMPD officers obviously do not need Ronaldo’s cooperation in order to seek charges against him, their inability to speak with him could make it harder to assess the reliability of the accusation. Police would prefer to interview Ronaldo to determine whether his explanation seems believable and is logically consistent. They would also like to compare statements by Mayorga and Ronaldo and assess areas of discrepancies.
Possible reasons for the police’s interest in a DNA sample—and why Ronaldo might never have to provide one
A search warrant issued for Ronaldo’s DNA means that a Las Vegas court has approved a request by the LVMPD. A judge or magistrate has agreed with the police that there is probable cause to believe that a crime took place and that Ronaldo’s DNA is relevant evidence. This development also means there is a written affidavit, which is most likely sealed, setting forth evidence that supports the necessity of a search warrant for Ronaldo’s DNA.
A search warrant for Ronaldo’s DNA does not necessarily mean that law enforcement believes Ronaldo committed a crime. In fact, a DNA match might only corroborate what Ronaldo already acknowledges: that he had a sexual encounter with Mayorga. If the DNA doesn’t match, then Ronaldo’s defense would be bolstered. He and his attorneys would insist that Mayorga must have had sexual relations with at least one additional person, whom they would presumably blame for Mayorga’s injuries. From that lens, Ronaldo may have more to gain than to lose by supplying a DNA sample.
Nonetheless, Ronaldo’s attorneys might still be wary of their client turning over his DNA. For one, they could have privacy concerns about sharing Ronaldo’s DNA. While procedures for the taking, handling and movement of a DNA sample from Italy to Las Vegas would presumably be well-designed, there is always the possibility of a leak or breach. Ronaldo’s genetic information would likely be of high value. DNA results can reveal, among other sensitive things, an increased chance of developing certain diseases. For a marquee athlete such as Ronaldo, any insights as to his health and prognosis would be valuable to his employers, prospective employers, the betting community and media companies that profit from writing about him.
A DNA sample could also be used for other law enforcement purposes related to Ronaldo. Even if the DNA sample does not implicate him with respect to Mayorga, it could conceivably be shared by the LVMPD with other law enforcement entities that investigate Ronaldo.
For those reasons, Ronaldo might not voluntarily comply with a request to provide his DNA. This presents a procedural problem for the LVMPD since it lacks jurisdiction to execute the warrant in Turin, Italy. An Italian court would need to approve the warrant. In doing so, the Italian court would need to ensure that it adheres to Italian law for search warrants. In the U.S., a search warrant must satisfy privacy considerations set forth in the Fourth Amendment to the U.S. Constitution and must also be filed in good faith by a law enforcement officer and be based on reliable information that supplies probable cause. In determining the lawfulness of the request, an Italian judge would instead refer to the Italian Constitution, which contains several privacy provisions, as well as to other Italian laws.
If Ronaldo’s attorneys object to the Las Vegas warrant, they will argue that the warrant does not comport with Italian law. They might also contend that the warrant is motivated by media sensationalism and by political opportunism on the part of American authorities to pursue a well-known foreign national.
If Ronaldo is charged with a crime, extradition law becomes relevant
At this preliminary stage of the police’s investigation, there is no indication that Ronaldo will be charged with a crime. In fact, as explained above, there are several reasons to be skeptical that Ronaldo will face charges.
If, however, Ronaldo is charged, the next question would be whether he would travel to the U.S. He could voluntarily return to Las Vegas and defend himself, presumably with top attorneys at his side. Or he could take the more risk averse approach. If so, he would likely use every tool possible to avoid having to appear in the U.S.
This raises the issue of extradition. The U.S. has an extradition treaty with Italy and also one with Ronaldo’s home country, Portugal. Further, the U.S. and the European Union negotiated an extradition treaty in 2003. While these are detailed agreements, they expressly restrict the ability of one country to force a foreign national to enter its jurisdiction and stand trial. Most crucially, a country can only “force” a defendant to appear if a judge in the country in which the defendant is located approves the request. In other words, a Las Vegas judge can’t unilaterally compel Ronaldo to leave Italy and travel to the U.S. An Italian judge would also need to consent. Under the relevant extradition treaties, an offense is only extraditable if it punishable under the laws of both the requesting country and the requested country and if the maximum period of penalty exceeds one year (a sexual assault charge would qualify). Extradition requires other steps as well, including involvement by the U.S. State Department.
If charged with a crime, Ronaldo would presumably contest extradition. He would attempt to persuade an Italian judge that the charge is politically-motivated. Ronaldo would stress that the LVMPD investigated him in 2009 and took no action at that time. Being charged a decade after an already-investigated incident, Ronaldo would contend, more than coincidentally follows his accuser becoming a public figure. To that end, Ronaldo would note that the Clark County district attorney who would prosecute him is an elected official. Likewise, Ronaldo’s attorneys might assert that the same charge, if brought in Italy, would be time-barred under Italian law and thus should not be extraditable (the persuasiveness of that type of argument would depend on the severity of the charge and any relevant Italian statutes of limitation).
In the still-unlikely event that Ronaldo is criminally charged, and if he then refuses to appear in court, don’t expect him to be tried in absentia. Nevada law makes clear that a criminal defendant must be present at different points in the trial process (Italian law also disfavors trials in absentia, reasoning that that they violate a defendant’s right to a fair trial). Las Vegas prosecutors would need to wait out any extradition process.
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.