An Open Letter to the DA in the Ben Roethlisberger Case

Hon. Fred D. Bright, District Attorney, Ocmulgee Judicial District, State of Georgia

Dear Mr. Bright:

Ben Roethlisberger raped a 20 year-old college student in your jurisdiction.

He committed a violent felony which you and you alone were responsible for pursuing.  You are the elected District Attorney who was called upon to summon the vigilance, resources, legal theory, competence and simple courage to bring this man to justice.  Justice, as you correctly stated, is your proper goal rather than a conviction.  Instead of pursuing justice, however, you ran from it.  In both substance and delivery, your decision not to pursue charges against this rapist is one of the clearest examples of prosecutorial incompetence I’ve witnessed in years.

Normally I would withhold judgment on a charging decision in a case I wasn’t directly involved in.  I’m aware that your rape statute is challenging.  I’m not familiar with your jury pool, your legal culture or the limits of your resources.  So while the decision looked timid and feckless to me, I was willing to extend the benefit of the doubt.

And then I heard you speak.

The news conference, where you laid out your reasons for not pursuing this case, to the extent that it accurately reflected your analysis, should stand as a training tool in how not to evaluate a sexual assault case.  You note “quite candidly” that it was the victim’s friends who initially sought out a police officer to make a report.  What’s your point?  That she was clearly not victimized because she didn’t have the wherewithal to seek out a cop herself, just seconds after being raped by a professional football player twice her size?

You note the victim’s statements changed over the night in question.  Are you really surprised, given that she was intoxicated, confused, frightened and in shock over the period of time in which they were taken?  What about the now resigned police sergeant who berated her for being drunk, spewed expletives about her and informed her and her friends that Roethlisberger had a lot of money, and that filing a police report against him would be futile?  Did you think that would promote cooperation and stability with your victim?  You note also the victim’s statement to medical professionals that night that she was “sort of raped” by a boy.   Therefore, in your mind apparently, she really wasn’t.  Because I guess it’s one shot, one kill in your jurisdiction.  If a woman, because of shock, fear, mistreatment, intoxication, confusion, the weight of circumstances, the attacker’s celebrity and the psychological punch of being raped, can’t recite facts flawlessly within hours of the attack, she’s done for.  The case can’t be proven.

I can’t say for certain whether you could have proven this case beyond a reasonable doubt and you can’t either.  I can say for certain that the standard you invoked for whether charges should be brought is utterly false, in addition to being misleading and needlessly defeatist.  The National District Attorneys Association, an organization I served for two years, promulgates Prosecution Standards which state that the prosecutor should file “only those charges which he reasonably believes can be substantiated by admissible evidence at trial.”  You had plenty.  You had motive, opportunity and zero delay in reporting the incident.  You had eye- witness testimony from her sorority sisters, panicking at the thought of their friend’s condition and circumstances, and being coldly stonewalled by “bodyguards” and the bar management.  You had physical findings consistent with sexual penetration.  You had the gift of a rare evidentiary rule that would have allowed you to use Roethlisberger’s 2008 sexual attack as part of your case in chief had you developed it.  You might have had the victim’s testimony had you chosen to establish a rapport with her from the beginning without judging her from a distance.  In order to develop a rapport and promote cooperation, a competent prosecutor will reach out to the victim of a sexual assault immediately.  Did you even speak to her before she was ensconced in legal protection of her own before April 2, nearly a month after the rape?

Your responsibility includes a college town, Mr. Bright.  If this is how you react to the extremely common scenario of alcohol facilitated sexual assault, then I fear greatly for the people you’re sworn to protect.   I understand the victim’s eventual desire that the case be dropped, and I respect the fact that you took her wishes into consideration.  Regardless, my guess is that treating her and this case with more respect from the very beginning might have yielded a different outcome with regard to her willingness to cooperate.  Instead you pointed to her failings as a 20 year-old college student and perversely equated her behavior with Roethlisberger’s that night in some inappropriate scolding session you had no reason or authority to engage in.

I don’t believe you dropped this case in any sort of deference to a celebrity. I think you ran from it because you’re thoroughly unschooled on how to prosecute anything like it. Thus, you have failed this woman, the citizens of your jurisdiction, and the wider world beyond it.  You have allowed a repeat sex offender to escape, let loose to rape again, which he almost surely will, despite your admonitions to him to “grow up.”  Ben Roethlisberger is grown up, Mr. Bright.  He’s a grown up rapist, and he has permanently altered and forever scarred the life of more than one woman.  If he does so again and his next victim chooses to report him, I pray that her courage is this time equaled by that of the DA responsible for doing justice.

Very Truly Yours,

Roger A. Canaff, JD

22 thoughts on “An Open Letter to the DA in the Ben Roethlisberger Case

  1. JB in San Diego

    When I first saw the video I thought that Bright’s statements came really close to blaming the victim for the crime, and also were horribly insensitive as he treated Roethlisberer like a truant schoolboy rather than an alleged rapist. Reading your analysis, Roger, it seems he wasn’t just insensitive, he was bordering on criminally negligent. If there is justice in the end, Mr. Bright will follow in the footsteps of the Hon. Mike Nifong.

  2. Beth

    Once again, you nail it. Brilliantly written, Rog. Such a sad story of incompetence and failure. When this guy rapes again, the DA in this case should be prosecuted in kind.

  3. Catherine Hahn

    This is horrifying, but not surprising. That it happened in the deep south does nothing to help dispel the bad reputation that dogs the region.
    I would not be surprised if she decided against pursuing the matter b/c she feared for safety. He can throw a football, therefor he is immune from punishment for his actions. If you have any question about the depths a well remunerated defense will plumb, check out the Haidle case in Orange County, California.
    Thank you for addressing the continuing disappointment in this manner.

  4. rcanaff Post author

    Thanks, all- one major correction: The other alleged sexual assault I was talking about was the incident in 2008 (in Las Vegas), not 1998. My apologies.

  5. Karen Carroll

    Bless you Roger. Once again you have shown the world how lucky we are to have you as a Prosecutor. You have truly dpepened my admiration for your knowledge and ability to crystalize the facts of a case. I hope this DA takes your comments to heart and learns from his mistake. As a survivor, I pray that other survivors read your comments and know that there are DAs out there who “get it” and who really want to help.

  6. Christian

    Insightfully and incisively written, Roger. Thank you for possessing both the passion and eloquence to powerfully address this case from both a prosecutor and advocate perspective. If only ESPN and all of the other sports celebrity worshipping media outlets would invite someone onto voice this side of the issue. I am so tired of hearing Rothlisberger is just a guy who “puts himself in bad situations” and “uses bad judgement.” He premeditated this crime (whether he himself sees it as one). If a prosecutor cannot feel comfortable bringing charges to a case like this, I fear we have reverted back to an age where only stranger rapes– with “good” victims– can evern be prosecuted.

  7. rcanaff Post author

    Thanks, Christian- and frankly I should have noted that victim advocate involvement would have been helpful here also. Thanks for the reminder.

  8. John

    You all sound brainwashed by this guy spewing what he tinks he knows about. The media is picking Ben apart by only publishing the worst witness testimony. You read the accusers froends testimony and treat it as fact even though they are the only 2 that apparently saw it, even though there were 15-20 females in the VIP area. If he friends were so worried about it, why not scream, yell, call 911, get some other customers in the bar involed to “help” her. The medical examiner’s report said she could not prove sexual assult. The accuser’s story the night of the incident was a lot different from the story she provided the next day. Here friends testimony was different the night of incident thatn it was the next day. The called a friend to come get them to take them to the police station, even though the police station is less than 1/4 mile away. You would of only procecuted this case to get your 15 minutes of fame.

  9. rcanaff Post author

    This same media that is apparently out to get Ben also refers to her as an “accuser” as you do- a term that invokes images of the Salem Witch Trials. No medical examiner’s report will say that it “proves” sexual assault- that’s not how it works. Statements that change over time after trauma are not at all uncommon. Police officers are regularly required to wait two sleep cycles before making a statement about a shooting in which they’re involved. But with victims of sex assault, they’re obviously lying or crazy if they can’t recite facts perfectly within minutes of being assaulted. Sorry we disagree, but thanks for the comment- I’ll continue to await my 15 min.

  10. Catherine

    When you put it that way, comment section Jon & Roger, this isn’t dissimilar from the “Ask Amy” debacle Roger wrote about last December. The “boys” and “girls” in these situations just made bad decisions. Drinking to excess isn’t a good idea for anyone of any age, no matter where you are (see acquaintance rape). That doesn’t mean she allowed the rape in any way. The best thing I’ve seen printed on this matter was in response to Ask Amy the rape apologist, “Women do not exist in a state of perpetual consent to sex, which they must cancel out by saying “no” in order to prevent a man from having sex with them”. More at feministing.com
    The reason none of the girlfriends screamed and called 911 is b/c females haven’t quite shaken off the cultural stigma of hysteria. You see, the victim being able to scream in her highly intoxicated state implies some cognition of what was going on. The friends screaming implies that they knew what was going on outside of their sight- wish that was possible. Not unless we’re imbuing these sorority sisters with super powers- past trying to get to the friend that was separated from the herd. A very bad indicator of predator behavior/ intent.

  11. Eric

    I am not a fan of Ben Roethlisberger at all, in fact I think he is a smarmy punk with little or no moral fiber and an immaturity level that rivals a 13 year old boy. Personally, I would absolutely LOVE to see him thrown in prison and rot there. But I must say, I feel that your “open letter” was very irresponsible and bordering on slanderous. You speak about the incident as if you were present, as if you have some knowledge of the incident to which the rest of us are not privy. You call this man a “rapist”, which is just about the worst thing a person can be called aside from maybe “murderer” or “child molester”, as if he has been convicted of rape. He has not. You speak of the alleged victim’s story as if it was undeniable fact- as if you have first hand knowledge that she is speaking the absolute truth. While it may or may not be true that Mr. Bright should have pursued charges in this case, neither you nor I have the knowledge about or the insight to this case to make any valid judgment about that. It is ridiculous to state that charges should have been brought against Mr. Roethlisberger based on what one has read in the news or heard on the television. There could have been (and probably were) a host of facts that were withheld from the press to protect the young woman’s privacy or because Mr. Bright’s office simply did not feel they should be publicized. You are also ignoring the fact that this young woman had much to gain from this allegation, and while you may think that is cynical or heartless, it does not mean that it isn’t true. I’ll have you recall the Duke University Lacrosse rape scandal to name one incident of false allegation against a sports figure for monetary gain. If you would have written a similar letter at that time calling those boys “rapists”, you would have found yourself at the end of a lot of pointed fingers, and rightfully so. Mr. Roethlisberger could be an evil repeat rapist or the young woman could be a clever money-hungry opportunist- the fact is, you have absolutely no way of knowing and to make blanket statements as if you do know is not only irresponsible, but also completely discredits anything you say, in my opinion. I think you should consider your words a little more carefully, because calling a man a “rapist” without merit is crossing into territory in which I don’t think any respectable journalist would want to find himself.

  12. rcanaff Post author

    Eric- Thanks very much for taking the time to comment- I understand your disagreement and concerns with my language, but as a lawyer (not a journalist, actually- not even in my spare time) I choose my words very carefully, and I stand by them. A brief reply:

    My post was aimed more at the decision process, revealed by the press conference, of DA Bright. As I noted, to the extent that his own words reflect his analysis, his analysis was deeply flawed. If there was information not revealed to the press (which I doubt- I think everything truly relevant came out in the wash) I’d expect that he’d have referred to it at least obliquely, as in “this was a difficult decision and based in part on information that for various legal reasons I can’t publicize.” He did not. Instead, he gave a fairly detailed account of what he knew and how he decided the case based on what he knew. It was for that I took him to task, and I stand by my opinions.

    With regard to whether Roethlisberger deserves to be labeled by me “a rapist:” I think he does. If you have a legal background, you’ll know that the issue is actually libel, not slander, although to be fair libel and slander are often confused. Roethlisberger is a public figure and this matter is now a public one. The First Amendment is highly protective on opinions regarding such things, and in any event I have a quite reasonable basis to make that claim. You yourself seem to take a curious stand with regard to him. You note that he’s an immoral punk and you state that you’d love to see him rot in prison. Really? Then you must believe that he is guilty (as I do) of a crime worth ‘rotting’ in prison. Presumably a felony. So if you believe he should rot in prison, and I believe he’s a rapist (rapists sometimes although rarely do serve long prison terms) then we really don’t disagree. You appear simply to take me to task for using the term “rapist.”

    And yes, I believe the victim. Not because I was there and know for sure, and not because I, in knee-jerk fashion, believe all victims. The fact is, Roethlisberger has a history of being accused. He must be a remarkably unlucky guy. The allegations made by the woman in Las Vegas in 2008 have a very similar flavor to the ones made in March 2010. In addition, while you bring up the specter of money-seeking false victims, I can tell you with great confidence that there is absolutely zero rational reason to believe that happened here. For one, the way the Georgia allegation came out is completely incompatible to one a woman might seek to make if she were falsifying for some financial reason. Secondly, false allegations are rare. They’re as rare in sex cases as they are in any other type of crime. I challenge you to show me anything scientifically reputable to dispute that fact, and can offer much hard research to support my conclusion. Despite the fears of many men and (I suppose) some celebrities, the bars, dinner parties and clubs of the world are not filled with women looking to turn wild nights of sexual passion into crocodile tears and false allegations for financial gain or fame the next morning. In any event, this victim didn’t report the next morning. She reported, with the help of concerned friends, immediately. She was confused, yes. She was in shock and still intoxicated. The very fact that she equivocated and doubted herself as to whether was “really” raped belies completely any claim that she was setting up Roethlisberger for money or anything else.

    You’re correct that neither of us know, for sure, what happened. I’m less concerned with whether the DA would have “won” the case and more about his incompetent analysis, as revealed in a rambling public statement, about why he shied away from it. But in any event I’m basing my conclusions on what facts I know, what I know about the dynamics of sexual assault facilitated by alcohol, and more importantly what the DA stated in a press conference. Respectfully, you seem to be basing yours on myths that surround sexual assault and how it’s reported and dealt with in this culture and others. Again, thanks for the comment.

  13. rcanaff Post author

    Great point by Catherine- the stigma of female hysteria keeps many women, especially younger women, from sounding an alarm even when it’s appropriate to do so. Yet another myth that needs to be shattered so that justice can be done in cases like this. Even more important is prevention of this kind of behavior and victimization in the first place.

  14. Eric

    Allow me to begin by addressing one particular thought in my comment on which you focused heavily in your response. From what I have seen of Ben Roethlisberger in the media, I don’t particularly like him and think he lacks in many areas that I believe to be important in a human being. And I would like to see him rot in jail- IF he deserved to be there. My intention was certainly not to portray that I felt he should be locked up because I don’t like him. I wouldn’t wish false incarceration on my worst enemy, so I certainly wouldn’t wish it on Ben Roethlisberger. So, while we may agree on our impression of the TYPE OF PERSON he is, and that we don’t like him, we most certainly do not agree on whether he should be labeled a rapist simply because he has been accused of it.
    Second, I never took issue with your criticism of Mr Bright’s “decision process”- as a matter of fact I agree that he said some asinine things in regard to this case. What I do take issue with, however, is your blanket statement that charges should have been filed, which was written not as your opinion but instead asserted as fact, as if you were stating that the sky was blue in the face of dissension. Your opinions are not facts- no one’s are- and if you are going to publish something in any medium, that is something you need to learn. Which brings me to my biggest issue with your piece.
    You may indeed “think” that Mr. Roethlisberger deserves to be labeled a rapist-but that does not make it so. You have every right to “think” that- when you publish it, however, it becomes libel. You are correct that the First Amendment is very protective of opinions. The problem is, nowhere in your piece did you state that your words were your opinion, but instead asserted them as fact. You did not say, “I BELIEVE Ben Roethlisberger raped a 20 year old college student in your jurisdiction” or “You have allowed an ALLEGED repeat sex offender to escape” or “I THINK he is a grown-up rapist”. No, you made these statements as if he was indeed a convicted rapist and sex offender and someone who knows nothing about this case would assume, after reading your words, that he was. Being an attorney, I am shocked you would toe a line so very close to libel. The law on libel is very clear- “to publish in print an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others and must be a statement which claims to be fact, and is not clearly identified as an opinion.” You most certainly published an untruth about a man which could certainly bring him the hatred or contempt of others and which was never clearly identified as an opinion. You may not lose in court, but there is certainly grounds for a suit against you in my opinion.
    In closing, I’m going to give you my opinion. I think your personal cause in life is the defense of sexual assault victims. I think it is something you take very seriously (and rightfully so) and is very close to your heart. I think you have seen many an injustice done in your day to sexual assault victims and you are tired of it (again rightfully so). I think it really sickens you to watch as celebrities or sports figures get away with abusing women because of cowardly DAs. I think you wrote this “letter” because you wanted to raise a little awareness, and you made it very sensationalistic to get your point across in a shocking manner. I think you realized this wasn’t exactly going to appear in Time Magazine, so only a few people would read it and be affected by it so a little libel for shock value wouldn’t be a big deal because it’s not likely that Ben Roethlisberger is going to ever see it anyway. And that’s your chance to take. But I still feel it is a very irresponsible piece and certainly nothing I would ever publish and take responsibility for. But, hey, that’s just my opinion.

  15. Gaines

    (Note to other commentators, what follows was actually the very first comment, albeit made to Roger and a few others in a private email. At his request, I am getting around to posting it here, although editing out a personal story involving mutual acquaintances. After this post, I will have a follow up post about what I think now, having had a few days to percolate)

    I think that is a decidedly unfair a characterization to call Roethlisberger a rapist. The woman in that case (the Vegas case) certainly has accused him of that, but her story isn’t nearly what the current case is. She, allegedly, bragged to her friends that she had slept with Roethlisberger. Because of that and other problems with her story, the DA chose not to prosecute in that case. So, right now, all you have is her allegation of rape and counter allegations (that did not originate with Roethlisberger) that she bragged about having sex with him (and by implication, consented, since what victim brags about sex that was rape?). So, unless a civil court finds in her favor, it is incorrect to depict it as a sexual “attack”. Logically then, it is perhaps not something the Georgia DA in the current case could have relied on. And even if the statute allowed it, it certainly wouldn’t be fair to rely on one other case that was never decided and was only he said/she said.

    Just because security goons and bar managers act stonewall and a cop doesn’t do his job, doesn’t mean a rape happened (or that it didn’t). In the police report that was released last week, very specific allegations were made by the young woman. However, that doesn’t mean that they happened. I’m not saying they didn’t, either.

    Look, I strongly suspect Kobe Bryant actually raped that woman in Colorado. It’s a shame she backed off/was bought off, but because she did and no case was brought and I wasn’t there, I don’t think it is fair for me to call him a rapist, even if I do think he is sleazy. I also strongly doubt that Roethlisberger raped the woman in Vegas. I think she was an opportunist. This current case in Georgia, I suspect that a rape occurred, but I don’t know it and no court has said it. I think my biggest beef is with the conclusory statements about Reothlisberger’s guilt and his character (sexual predator) when, as you admit, you don’t know anything first hand and no court has made any ruling.

    I am okay with you critiquing the DA for his public statements. That is a separate matter. Since it is the main subject of your blog entry, the other stuff distracts from the main point you were trying to make.

  16. Gaines

    Now for the follow up.

    I still, as a matter of principle have a hard time throwing around terms like “rapist”. However, given the events of this week, I am becoming more sympathetic to the counter-view, in this case. What really ought to be talked about more is the reaction of the sports world to the NFL’s suspension of Roethlisbrger.
    It is appalling that most sports talking heads seem to be shocked by the length of the suspension by the NFL and think that it is inappropriate and unfair. Basically, they seem to be taking a lot of the argument that I put forth in my first post and using that as leverage to whitewash Roethlisberger.
    I know it would have been devastating from a competitive vantage point to trade him or cut him, but that is what the Roonies needed to do to maintain the integrity of their franchise. Whether or not he legally meets the definition of a rapist, he is as slimy as they come. Almost the stereotype of the star jock who thinks he is above challenge.
    I grew up a Steelers fan and they are probably my 2nd or 3rd favorite team after my home-state Panthers. I will not pull for them as long as he takes the field.
    It is past time that all professional leagues take a hard line on sexual violence against women and adhere to strict zero-tolerance. It would set the tone down to the high school level that marauding by athletes, no matter that it used to be the accepted norm, is no longer to be tolerated.

  17. rcanaff Post author

    Thanks again for your thoughtful comment, Eric. All I can tell you is that I think your understanding of what constitutes libel in a situation like this one is incorrect. For one, I didn’t in any way knowingly and maliciously publish an untruth with the intent to bring opprobrium onto Mr. Roethlisberger. I’m one of millions of people who believe he committed rape- both in Georgia and in Las Vegas- based on the accusations against him, the evidence supporting those accusations, and his clear pattern of behavior. The fact that BR hasn’t been convicted of rape doesn’t mean that he didn’t commit the crime(s), and there is quite a bit of evidence to the contrary. As for whether he should have to prove a negative in order to sue me? He’s a public figure, this is a public matter, and he can take it up with the Supreme Court. I have no idea, actually, how far and wide this post will spread, but if it does reach BR and his attorneys, I’ll be happy to answer their libel suit.

    For another, while you take me to task for my words (and I don’t blame you, because words are crucial to an attorney and are the weapons we wield) I will remind you of yours: You didn’t say that BR should rot in prison IF he deserved to be there. You stated very clearly that you wished to see him there, period. You did not make the statement conditional.

    I appreciate your comments about what I do. I am indeed passionate about this subject, but I am not blind to the law, or to basic standards of fairness. I don’t deny that my comments were extremely harsh and intentionally provocative. But I see nothing in them I’d call reckless, or that I’d take back. Sorry we disagree, but thanks very much for taking the time to write.

  18. rcanaff Post author

    Thanks, Gaines for commenting here, and for your thoughts. I’m not a big sports fan, as most people know, and that combined with zero athletic talent has left me less than imbued where pro sports are concerned. I’m confident commenting (again based less on what I think I know or am speculating about then on DA Bright’s words) on the criminal justice response to this incident. I can’t and won’t comment authoritatively on the appropriateness of the NFL’s decision. If the NFL is punishing BR for simply being accused and not convicted, that doesn’t seem right. If they’re punishing him because they’ve adjudicated or decided somehow that he is a rapist, then 6 games seems grossly inadequate. If, however, they’re punishing him for generally boorish and unprofessional behavior, with at least the whiff of sexual violence thrown in, then maybe 6 games makes sense to them. Again- I just can’t weigh that. I feel for the devoted Steeler’s fans who have been let down- unfortunately great athletic ability, while often very much a product of character and hard work, is sometimes just about amazing talent (and in any event disconnected from character).

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