A closer look at the one-year delay in the Roethlisberger case

NFL_roethlisberger6.jpgThe Associated Press asserts in a new article regarding the civil case against Steelers quarterback Ben Roethlisberger that his accuser “will have a difficult time convincing a judge and jury” that she was sexually assaulted “because she never reported it to police and waited a year to file a civil lawsuit.”

As  Dick Gammick, a Nevada district attorney not involved in the case, told the AP, “The question they are going to be asked right out of the chute is why did she not file a complaint with the police?”

These valid points have a high degree of superficial appeal and, depending on the way that the case unfolds, possible substantive merit.

But let’s consider the other side of this.

The plaintiff, Andrea McNulty, already has indicated that the non-filing of criminal charges will be blamed on her co-workers. 

At Paragraph 89 of her complaint, McNulty claims that she informed Harrah’s security chief, Guy Hyder, of the incident the day after it happened.  (That said, the fact that she admits in paragraph 88 that she merely went home the night of the alleged assault means that there will be little or no contemporaneous evidence.)

Hyder, per paragraph 90 of the civil complaint, “dismissed” McNulty’s distress and said she was “over reacting” and that “most girls would feel lucky to have sex with someone like Ben Roethlisberger.”

At paragraph 92, McNulty alleges that she assumed Hyder would investigate the assault and that the appropriate executives would be notified.  (Frankly, she’ll have a hard time dealing with this one when she’s being grilled at a deposition, given her allegation that Hyder was dismissive of the allegation in the first place.  Why in the world would she think that Hyder was going to investigate the claim?)

At paragraph 94, McNulty claims that she was discouraged from making any further report, given the manner in which Hyder dismissed her initial complaint. 

At paragraph 96, McNulty claims that Dave Monroe, the vice president of food and hotel operations at Harrah’s Lake Tahoe facility, said that John Koster, the president of Harrah’s Northern Nevada who allegedly has a good friendship with Roethlisberger, would fire the plaintiff for “starting rumors” about the Steelers quarterback.

And so in paragraph 98, McNulty explains her failure to go to the police at the time:  “Plaintiff felt that she had nobody to turn to at Harrah’s and was afraid of the consequences of reporting it to police authorities since it was obvious to her that Harrah’s and its personnel, particularly Hyder and Koster, would side with and support Roethlisberger, the celebrity friend of Koster.”

Though a jury might not find the explanation to be credible in light of the evidence ultimately introduced at the civil trial, Andrea McNulty will have an opportunity to introduce sufficient facts to persuade the jurors that it was reasonable for her to not go to the police, given the specific circumstances with which she was confronted.

Frankly, we’re not sure that it was reasonable to believe she’d be fired if she filed a criminal complaint against Roethlisberger.  Though we haven’t research Nevada law on this point, we’d like to think that the state’s legislature or its court system protects employees against retaliation arising from the filing of good-faith police reports regarding criminal conduct occurring in the workplace.  (Then again, having a potential lawsuit and having a job are two different things; while it’s pending, a lawsuit won’t pay the rent.)

As to the one-year delay in filing the lawsuit, there likely were sound strategic reasons for waiting.  We’ve previously pointed out that McNulty’s lawyer, Calvin Dunlap, apparently opted to wait until Roethlisberger was back in Nevada so that Dunlap could file the lawsuit and serve the paperwork while Roethlisberger was within the state’s borders.

If the lawsuit had been filed before Roethlisberger returned to Nevada, he might have decided that a weekend of golf in Lake Tahoe wasn’t worth the risk of having to defend against a lawsuit so far from his home turf.  The fact (as we’ve learned) that no pre-suit settlement demand was made supports the notion that Dunlap might have decided as a tactical matter to wait to file the claim until Roethlisberger returned.

As a reader who also is a lawyer has pointed out, some states allow lawsuits filed there to be served on the defendant in other states.  But even if Nevada law purports to permit a lawsuit to be filed in a local court and then handed to Roethlisberger at the Steelers’ training complex a couple thousand miles away, relying on this approach would invite an attack on the move — possibly via the filing of a separate lawsuit by Roethlisberger in the state where the paperwork was served.   

So the safest approach, from a legal strategy standpoint, was to intentionally delay filing the suit until Roethlisberger was back in town. 

Also, while it makes sense for Roethlisberger’s legal team to attack aggressively the absence of criminal charges, a defense based in part on pointing out the one-year delay in the filing of the civil case could backfire.  Some jurors could interpret an all-out attack on the fact that a year passed as an implicit lack of confidence in the more important aspects of the case — such as whether Roethlisberger sexually assaulted Andrea McNulty.

Regardless, these are real issues that could hurt her case in a court of law, and in the court of public opinion.  But as Roethlisberger himself said on Thursday, “The truth will prevail.”  The decisions McNulty made (or didn’t make) when it came to deciding whether to file criminal charges and when to file a civil case doesn’t change what occurred (or didn’t occur) in Roethlisberger’s hotel room on the night of July 11, 2008.

Though these factors might make it harder for her to get her message across, the jurors will be considering those collateral issues at the same time it is processing the full range of evidence submitted at trial. 

34 responses to “A closer look at the one-year delay in the Roethlisberger case

  1. Someone being dismissive is not the same as discouraging her from filing elsewhere. The boss not believing you is reason to go the police. She also will need to present proof that her job would have been in jeopardy if she reported it. Just saying “oh they’re friends with Roethlisberger so they wouldn like it” is not enough.
    Sorry, if she HAD filed the criminal case, a warrant for his arrest could have been issued bringing him back to Nevada. Then she would have had to wait until he was there again to file the civil suit.

  2. He’s Guilty, Big Name QB thinking he can get away with it, Lock him up and say goodbye to the 100 million dollar man.

  3. I think he had sex with that woman, however it was consensual. He never denied having sex with her in some form.
    also, if I was brutally raped I wouldn’t care about getting fired. That would be the last thing from my mind.
    I’m sure if she got fired she had friends or family that would allow her to bunk with them for awhile.

  4. Marty, he aint getting locked up. You can’t get locked up for a civil case. Ask OJ.

  5. With a Super Bowl hangover and this issue in Big Ben’s mind…I’ll take Titan’ s getting the 5 points on opening night.

  6. Have the body language expert broad decide this. In the meantime Ms. McNulty can get a new job while waiting for her Big Ben payday. There’s job openings just down the street, where Kaufmann’s used to be.

  7. Her story just seems so unlikely so far. I found the quotes strange in her statement earlier. If I remember correctly, she says she began to make her objections by saying “You don’t want to do this” (as opposed to “I don’t”) and “I am not on birth control,” neither of which are even objections depending on how they were said.

  8. 1. Unless it’s changed in the past few years, Nevada’s anti-retaliation statutes only protect state employees. However, Nevada courts do recognize a public policy exception to the rule of at-will employment, so she could have probably succeeded on a wrongful discharge claim if she had been fired for filing a criminal complaint.
    That said, who knows whether the remedies available to her provide any incentive to go through that mess. If Nevada courts don’t award punitive damages and only award back pay, re-positioning, and/or actual damages, then there’s no contingency fee basis for a lawyer to take her case, and she presumably doesn’t have the money to pay for one herself.
    Then again, all of this assumes that McNulty actually knows any of this about the law, and she presumably doesn’t. So, perhaps it didn’t occur to her to talk to a lawyer to find out if her job would be protected if she was wrongfully terminated. Unfortunately, sometimes pursuing justice just isn’t worth somebody’s time and effort, and it sounds like she was doing pretty well at Harrah’s. I think it’s perfectly reasonable for someone like McNulty to seriously consider, and ultimately decide, that jeopardizing her job is simply too risky.
    2. According to a 2005 National Crime Victimization Survey, only 38% of sexual assaults and rapes are reported to law enforcement. Despite people’s incredulity, the failure to come forward is a well-known and widespread phenomenon. And that’s to say nothing of the fact that, here, the alleged offender is a famous professional athlete – an even bigger disincentive to come forward. Who wants to be thrust into that kind of spotlight under these circumstances?
    Judging by many of the comments left here since this story broke, who can blame her, or any other women that don’t report these crimes? I’m surprised it’s even 38%.
    3. Of course, we’ll see, but my gut instinct is that she’s telling the truth. Other people may find it completely damning that no criminal complaint was filed and that the alleged incident occurred a year ago, but not to me. As Florio pointed out already, the fact that no criminal complaint was filed may simply be a matter of legal strategy — with different burdens of proof between civil and criminal cases, perhaps her lawyer, looking at the evidence, thought a criminal prosecution would be difficult, and decided to go the civil route instead. Perfectly reasonable in my book.

  9. Can everybody get real here. There is no plausible reason not to file a criminal complaint when you think you have been raped.
    Its all part of the bargaining chips for settlement. The statute of limitations on rape is greater than one year I am sure. The police have already said absent a third party witness, Mcnulty is the only one who can file a complaint to prosecute. Her attorney is going to use the threat of a criminal complaint as part of the negotiating tactics. They are hoping for a quick settlement of this manner.

  10. A teacher at my middle school systematically raped 30 or so students over a period of years and it was at a reunion 20 years later when several students broke down and realized they were not alone. They only then came forward. He was eventually convicted to life and is currently serving. So a delay in reporting a rape is not necessarily unusual as it has deep psychological impacts.

  11. Yeah, most complaints of rape don’t get filed. But, the victim also doesn’t turn around and file a civil suit against her attacker either. the case usually is not filed because the victim doesn’t think any one will believe her (yes here but she thinks a jury will in a civil suit) or they just want to forget it ever happened (again a civil suit doesn’t allow that).
    Sorry, I am not believing the knee jerk, oh she claimed rape against an arrogant football player so it must be true. Kobe Bryant? William Kennedy Smith?
    Just for the record, I work with victims of rape and domestic violence all the time. Her story is not credible to me. I am also a Dallas fan, so it not Steeler bias driving me.

  12. Florio you’re ruining your own credibility
    by trying to pursue things from her side. She
    has a great attorney and she will need one to
    create a perponderence of evidence. She has
    hearsay and her personal feelings that staff
    & personnel within Harrah’s Las Vegas tried
    to cover things up. Perhaps she did not file a
    criminal complaint for fear of being sited for
    filing a false police report. McNulty as the
    plaintiff in a civil case has the burden of
    proof. She must through evidence show
    proof of her claims. It may not be as much
    as reasonable doubt but in a civil trial she &
    her lawyer must still show some proof. Her
    testimony seems to be the only evidence.
    It may be enough to allow big Ben and the
    Steelers to not want the PR risk and decide
    to pay her. That’s her best shot. She will not
    win in court and her lawyer knows it. She is
    a nobody taking a shot at a fat paycheck for
    her silence. That’s what is going on here!

  13. >>>Florio says: Though a jury might not find the explanation to be credible in light of the evidence ultimately introduced at the civil trial, Andrea McNulty will have an opportunity to introduce sufficient facts to persuade the jurors that it was reasonable for her to not go to the police, given the specific circumstances with which she was confronted.

  14. He said, she said. Show some proof. From the I have read so far, Big Ben is a rich, spoiled, pampered jock and most likely did the troll. She on the other hand is looking for a pay day and should not get a dime.
    muchmaligned, judging by your last blog, your dummer than a box of hair. What a terrible thing to say. I bet you momma’ is real proud of you. Stupid !!

  15. I still think she was smitten with big ben…And when she realized she was duped and all he wanted was one night and to never see her again… She was hurt, angry…Now that he got a big money contract she thought she would get back at him, and his pocket book.

  16. I suspect that the truth lies somewhere in the middle. I suppose the sequence of events played out int he following manner:
    It is possible that McNulty initially submitted to BB, then had some remorse/misgivings about the events. Then, while they where in the act, she says stop. BB stops, but perhaps not immediately. Video tape is reviewed, coworkers realize that she was in BB’s room longer than customary, she is hassled by coworkers. She ends up feeling bad about how things transpired, realizes that what had transpired might be considered rape. Any potential evidence is long gone. Later, she discusses events with a psychologist who suggests hiring a lawyer and filing a civil claim, after all, BB has deep pockets. One year later, a law suit.

  17. Besides being ugly as hell……This broad is a wacko……..But i think Beno hit it……Price ya gotta pay…..At least he didn’t get McNaired….Even if He wins the case, lawyers aren’t cheap….

  18. What happened in the last 13 months?
    Oh yea, he won a super bowl and got a 102mil dollar contract. That explains the delay…

  19. The fact that so many are hanging their hat on the notion that the one year wait will favor Ben tells me they KNOW NOTHING about rape. The majority of women never report it, period.
    I say she wasted time going to Harrah’s instead of Reno PD. I am also thinking she may have wanted to avoid a Colorado spectacle.
    When did she seek legal assistance? The report here suggests that she sought legal help a year ago but I find it ludicrous that a lawyer would sit on this allegation because the perpetrator is out of state.
    I am also hearing that Ben may settle to save his reputation and endorsement commitments in spite of his not mea culpa press conference. I’m inclined to think her lawyers knowing the Kobe case outcome are not likely to make stupid mistakes.
    If this was consentual, perhaps it is time pre-sex informed consent document for all athletes. Any legal beagles listening?

  20. Lee, the one year wait is just one thing that help Ben.
    1) No rape kit done
    2) No criminal report
    3) No criminal Investigation
    4) No criminal charge
    5) No witnesses
    6) NO video tape
    7) No pictures of any battery
    8) 8 Co workers who are against you
    All this woman has is a story. If she wins , all men are in trouble.

    Re the paragraph beginning, “Frankly, we’re not sure that it was reasonable to believe she’d be fired if she filed a criminal complaint against Roethlisberger. Though we haven’t research Nevada law on this point, we’d like to think that the state’s legislature or its court system protects employees against retaliation arising from the filing of good-faith police reports regarding criminal conduct occurring in the workplace. ….”
    Whether or not the state legislature or court system was structured to protect employees as outlined, the complainant may not have known – I believe it’s highly unlikely that she would have known the law that well – most people only find out the details of the protections they have or don’t have, when they’re in the middle of a situation, and the reporting/non-reporting would have been early on in her situation.
    Also, if there were a rape, she just might have been the least little bit upset at the time. The shock of it doesn’t wear off overnight, sometimes not for a long time, depends on so many things. We “out here” don’t know this woman, and cannot judge how big an impact this would have had on her, or what her life has consisted of, over the last year.
    Intimidation, insinuation, even “warnings”, etc., can be overwhelming in a situation like that. According to her story, at least what we’ve heard of it so far, she was “getting the message” from a whole lot of people she worked with, and at least some of them were higher level execs. She’d really have to be an idiot to think that she COULD NOT have been fired if she reported it – powerful people – rich, famous, with connections -can make things happen. People in power who don’t want something to get out, can make things happen, or make things disappear. Fairness and logic do not always dictate people’s actions – are these assertions news to anybody? Much easier to simply get rid of somebody than to deal with an unpleasant situation, or make your powerful friends unhappy, or negatively impact your lucrative business..
    You have to be mentally and emotionally STRONG to deal with a criminal trial, even just to get through preliminary questioning, let alone testimony, and the worry that someone might take some kind of revenge on her if she DID report it. And a rape victim is hardly mentally and emotionally strong at that time.
    On the other hand, she could be just another lying opportunist, or the victim of a rape who does not find rape to be that big a psychic deal – some women just get really angry and seek revenge. (To others, it affects their whole lives.).
    Re Civil vs. Criminal – I don’t knew the law on this stuff, but if I were going through the aftermath of such a thing, and was able to committed to reporting it, I would surely go for criminal charges, it wouldn’t even occur to me to file a civil case unless some attorney suggested it.
    Ben R was – to me – awfully convincing in his statement, brief and elliptical as it was. He projected much more anger than self-justification or guilt. On one hand, he never looked at the camera, or hardly ever – but I saw that as embarrassment, that he’d have to be there, even TALKING about such charges.
    But then, familiar as his face is, we don’t know HIM either.
    I don’t know. The fact that there even IS such a story out there is just a bummer. I’m so ready for some gigantically GOOD news to come out of the sports world.
    Right now at least, my mind is open on this one.

  22. RAPE! RAPE!
    just getting tuned up for oct 11! hell i might just buy a freakin ticket for this one.

  23. For those thinking that “she waited a year”, did any of you actually download and READ the lawsuit?
    If not, you should. On page 20, it outlines several events that took place in early March of this year, events which gave her the feeling that she was being set up to be terminated. It was then that she sought legal counsel and that attorney referred her to Calvin Dunlap, the attorney who filed the lawsuit.
    You really ought to download it and read it.
    As for the timing when Ben was served the lawsuit, another attorney wrote the following:
    “Second, there has been criticism of the timing of the suit coming directly before training camp and approximately a year after the alleged incident. Florio speculates that the timing may be because Roethlisberger was in Nevada for this year’s version of the same celebrity golf tournament where the allegations took place, which might be when he was served with the suit papers.
    If that is true, it was a smart thing for Mr. Dunlap to do. This is because Big Ben’s presence in Nevada gives the state of Nevada personal jurisdiction over him. Personal jurisdiction requires certain minimum contacts with the forum state, which in normally satisfied by being physically present in the state when served with process. This means that when/if the case goes to trial, it will be in Nevada, in front of a Nevada jury, rather than in Pennsylvania/Pittsburgh in front of a jury that is most likely going to be pro-Roethlisberger.”
    — and —
    “The advantage to the Plaintiff in the Roethlisberger case from the case being tried in Nevada rather than Pennsylvania is enormous. Like I said, I don’t know if any of the allegations are true or not. But the Plaintiff being represented by a real lawyer who knows what he is doing gives her case a lot more credence in my mind.”
    Calvin Dunlap was the Nevada Trial Lawyers’ Association’s 2007 Trial Lawyer of the Year. He knows what he’s doing. Whether he can prove the allegations in the lawsuit, we’ll have to wait and see on that. But, he’s a smart attorney.

  24. paul
    Athletes end up settling a case like this cause they can’t take a chance on having someone like you end up on a jury. You have completely given this women a 50/50 chance without her having a shred of evidence.
    Please tell me how anyone should buy this women’s story?
    1) No rape Kit
    2) No criminal Investigation
    3) No crime reported
    4) No pictures of any battery whatsoever
    5) All 8 Co workers have sided against her
    6) She has not 1 witness
    7) Reports of involvement with a married man
    8) reports of falling in love with fake Man
    9) afraid to file criminal charges but ok filing civil chargers , yea ok
    10) She’ lived 31 years and the first person to have raped her is a 100 Million dollar Pro football 2 time SB winning Quarterback.

  25. Nevada courts kiss casino/hotel ass. Her concerns were legit. They own these judges.
    “Reno lawyer Ken McKenna represented a cocktail waitress at Harrah’s Reno who challenged the company’s policy requiring women to wear makeup while on duty—a case that went to the 9th U.S. Circuit Court of Appeals before she lost in 2006.
    “It is difficult for the employee to go up against the big employers, especially the gaming employers in the state of Nevada, no question about it” he said, recalling the difficulty he had in persuading any of the woman’s co-workers to come forward with evidence. “They fear retaliation.”” (yahoo)

  26. There are way too many words in this article, so I’m not going to read all of it.
    I do have a question for the resident lawyer, though.
    Do Steelers fans or even anyone who watched the Super Bowl get to avoid jury duty in this case based on possible bias toward the defendant?

  27. 1. What the hell good would a rape kit have done?
    He’s not denying he did her.
    2. She didn’t report it so that means it didn’t happen?
    Most rapes aren’t reported.
    3. See above.
    4. She didn’t resist. She said no. That’s all you have to do.
    5. Oh, the co-workers that work for the hotel that is accused of covering it up? What would the co-workers know anyway?
    6. She has one witness. Herself. Do most rapes have witnesses? Wtf?
    7. “Reports” of involvement with a married man. From what, some internet rag gossip site?
    8. More gossip site “reports”.
    9. See above.
    10. How in hell do you know if she was ever raped before? And what ib hell does it matter if she wasn’t?
    Okay, Clarence Darrow….. dismissed!

  28. Most likely he did have sex with that woman. Most likely she would have preferred that he use a condom. Most likely he ignored her request. Most likely she expected more from him…a follow up phone call….a card or letter….flowers….a check….or some acknowlegement for having performed a service for him.
    When none of the above occurred she most likely realized she had been used and discarded. This most likely angered her for having “given it up and receiving nothing in return.”
    Hence the lawsuit!
    A look into her lifestyle and sexual behavior prior to the alleged incident may eventually be examined. This course of action will most likely be taken by the plaintifs “shysters” and may cast a bit more light into her mental state/motivation for filing a civil alwsuit.

  29. BP
    You wrote “It is difficult for the employee to go up against the big employers, especially the gaming employers in the state of Nevada”
    Apparently this is not the case. She has filed
    a lawsuit against 8 0r 9 employees of that hotel.
    Sorry, but if you can file a civil suit like this, you can file criminal charges. No excuse whatsoever.
    She’s a nutcase and it takes nutcases like you to buy into what she is saying. I’d like to know what Percentage of supposed rape victims bypass the criminal court and go directly for the money?(civil court). She has lived 31 years and the first person to rape her was a Pro football SB winning QB. Yea ok. hahaahahahah

  30. BP said
    “. She said no. That’s all you have to do.”
    And you know that happened ? hahahahahahah

  31. I feel bad for Big Ben because its pretty obvious he is innocent. If Big Ben was the type to rape or sexual assult a woman some sort of allegation would have surfaced from his college days at Miami of Ohio. While some D1 schools do cover up football player indescretions, someone by now would have come forward with his fame, and that has yet to happen.
    I also think its rediculous you can accuse someone of something so awful with no evidence that such a thing happened. These types of things tarnish good peoples names for no reason.

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