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A Quarterback's Bad Calls

A Commentary By Susan Estrich

Pittsburgh Steelers quarterback Ben Roethlisberger is a bad guy. He may not be a rapist, in the sense that it can be proved beyond a reasonable doubt that he had nonconsensual sex, but not being guilty of a crime doesn't mean you're innocent. In my book, this guy should pay.

Twice in the past two years, Roethlisberger has faced accusations that he engaged in nonconsensual sex. A civil suit is pending based on a 2008 incident.

Most recently, the 28-year-old quarterback appears to have had sexual contact with a college coed after providing her and her sorority sisters with shots of alcohol at a Georgia bar. First he gave them drinks. Then his bodyguards reportedly "escorted" the drunken young woman into a small bathroom with Roethlisberger. When she came out of that room, her sorority sisters, apparently horrified, took her to the police and then to the hospital.

Earlier this week, the district attorney announced that he was not pursuing charges against Roethlisberger because there was not sufficient evidence to prove rape beyond a reasonable doubt: The girl was intoxicated. She and her family do not wish to press charges. While the medical evidence established lacerations in the vaginal area, only a "minute" amount of DNA evidence was recovered, and apparently no effort was made to establish a match with the quarterback.

Rape is a hard crime to prove. Almost by definition, there are rarely any witnesses. Most cases, particularly of the "acquaintance" variety, involve alcohol or drugs.

Bringing a case that you can't prove doesn't help anyone in the long run. A good prosecutor has a responsibility to convince himself that a would-be defendant is guilty, and a responsibility not to bring charges unless he believes he could also convince a jury of guilt beyond a reasonable doubt. To put the victim through the horror show of an impossible prosecution is a disservice to everyone. If you doubt that, think about the Kobe Bryant case. He's back at the top of his game. She would be better off had no charges ever been filed.

But that doesn't mean that bad guys should get away with behaving badly. It just means that we need remedies other than criminal prosecutions -- remedies that include civil sanctions and other penalties.

I hope the woman who was "escorted" into that bathroom and then emerged with lacerations and "minute" amounts of male sperm in her vagina sues Roethlisberger for millions. A civil suit requires only a preponderance of the evidence, not proof beyond a reasonable doubt. In a civil suit, the issue is not whether the defendant should be imprisoned, but whether he should pay.

Answering that question in the affirmative is, as it should be, a whole lot easier than finding guilt, especially when there are two women telling very similar stories. One woman may be destroyed as a nut and a slut. But two? Not so fast. And in a civil case, there is no question that all the testimony comes in.

The district attorney made clear that in deciding not to pursue charges, he was not condoning Roethlisberger's conduct that night. The prosecutor's office, he emphasized, is not in the business of enforcing morals. But the same is not necessarily true of the National Football League.

Like a university or an employer, the league and the team have a responsibility to demand more of people than the criminal law does. Organizations that hold themselves out as role models to young people should not let bullies and bad guys get away with abuse.

The answer to the difficulty of proving rape in the criminal justice system is not to change the rules of prosecution, but to recognize the critical importance of other institutions in enforcing rules of decent conduct -- including civil courts, university tribunals and professional sports leagues.

I have no doubt that a wrong was done here. The question is whether it will be righted. That is not for the prosecutor to answer, but for the league and the team. The buck stops with them.


See Other Political Commentaries

See Other Commentaries by Susan Estrich

Views expressed in this column are those of the author, not those of Rasmussen Reports.

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