When Ocmulgee Circuit District Attorney Fred Bright announced on Monday April 12th that he would not be prosecuting Pittsburgh Steeler Quarterback Ben Roethlisberger for the alleged sexual assault of a 20 year old college student, he simultaneously communicated some very dangerous messages to young men about sexual responsibility and legality.
In his press conference, Bright reported the following facts of the case. He stated that on March 5, 2010 Roethlisberger was barhopping in Milledgeville, Georgia while drinking with his friends in celebration of his 28th birthday. He bumped into a student and her sorority sisters several times through the night and later he invited them to a VIP section of a club and bought them a round of shots. Eventually, that student and Roethlisberger were in a small bathroom and the student later told police that she had been sexually assaulted.
Medical reports were inconclusive of whether or not a rape could definitely explain a cut, bruises and vaginal bleeding found in the examination. The DNA that was found was not enough to match; hence why Roethlisberger was not asked to submit a DNA sample.
He concluded that, taken in totality, the evidence did not produce a viable prosecution. Bright stated, “I know when I have a case, and I know when I don’t. I don’t have enough evidence to convince twelve jurors beyond a reasonable doubt that Mr. Roethlisberger was guilty of the crime of rape.” He also added that, “We do not prosecute morals. We prosecute crimes.” Being the District Attorney of that county in Georgia, I have no doubt that he knows far more about the laws of Georgia than I do, but, there are some crucial aspects to this case that young men need to hear in a different light; especially since, in some states, the evidence that was reported in the conference might very well have led to winnable case.
A principal legal component regarding sexual assault, and this is a also the central theme that is stressed when doing dating violence prevention, is the importance of the victim’s consent; specifically the lack thereof. Young men are socialized to believe that when a woman says, “No”, she really means, “Yes”. While there are times in sexual encounters that communication may be misconstrued, the burden to make sure that the woman is consenting to the activity is on the person who may be arrested if in fact she isn’t. Often I entitle trainings for young athletes, “Did You Get My ‘Yes’?”
Further, there are many circumstances (and there is variability in state laws) that explain what constitutes when someone is unable to give consent. If the victim is underage, they don’t have the moral development to appreciate the rightness/wrongness of sexual behavior and hence, statutory rape captures any such situation. In many states, if the woman is unconscious, in a coma, severely mentally disturbed or incapacitated due to being under the influence of alcohol or drugs, they may no longer have the mental capacity to give consent, and under those situations, anyone who has sex with her may find themselves arrested for sexual assault.
In some state law, the issue of “forcible compulsion” can also be used to prosecute a sexual assault. This is when a victim complies with sexual action out of fear that if they don’t, they will be seriously harmed, kidnapped or killed. This can be via an overt or implied threat. For athletes that may be large and intimidating, one could argue, that a woman complied because of what she feared he would do if she didn’t. Time and time again, I educate athletes, if you’re going to be sexually active, allow there to be no doubt that she is as consenting as you are. It is the epitome of safe sex.
The laws in many states have swung to make sexual assault prosecution easier because there were so many victims that either refused to come forward because of the retraumatization that cross-examination can cause or because they were dissuaded that the legal process would not lead to their perpetrators being brought to justice. The shift was necessary. Too many women are sexually assaulted. Depending on the statistics you refer to, most average that 1 in 4 women will be a sexual assault victim over the course of their lives. This effects our society and the only way rape isn’t a man’s issue as well is if he has no females in his life that he cares about.
When people work hard to give young people education about rape prevention, and your cautioning men about the legalities of sexual behavior that they should be sensitive to, and then a multi-millionaire athlete seems to “get off”, there is the real danger that young men throw away all that they are trained.
Women have the right to say no. Men should be clear that anyone they are sexually active with is consenting to do so. Assuming that they are consenting can be perilous.
There is a huge difference between guilty and convictable. DA Bright did not say that Roethlisberger was not guilty. His conclusion was that he was not convictable. The only two people who know whether what happened was truly a sexual assault are Roethlisberger and the victim; and that only leaves Big Ben if the victim was too intoxicated to remember, let alone consent, to any behavior. I have no interest in presuming Roethlisberger guilty, but I have great concern about what young men, especially athletes, may conclude wrongly, about what is sexual assault and what is not.