The 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.