Tuesday’s ruling that Browns quarterback Deshaun Watson must answer whether he had consensus sexual encounters with any of the 18 massage therapists who previously issued statements of support on his behalf has created some questions. Let’s try to answer them.
First, some wonder why any of this matters, given that two grand juries have decided not to recommend criminal charges against Watson. However, he continues to face 22 civil lawsuits alleging misconduct during massage sessions. The dispute regarding consensual sexual encounters arose within the context of the effort to develop evidence to be used in the trials of those 22 civil cases.
Second, some have asked why Watson’s activities with other massage therapists have any relevance to the 22 plaintiffs who are suing him. Generally speaking, a person’s conduct as it relates to others isn’t relevant. However, certain types of “other act” evidence can be relevant and admissible, in specific circumstances.
Under Rule 404(b) of the Texas Rules of Evidence (most if not every American jurisdiction has adopted the same rule), this kind of evidence can be used to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” In this case, the plaintiffs will argue that the question of whether Watson has engaged in other massages that turned sexual arguably shows that he engaged massage therapists with a goal of having the massages become something more.
Third, Watson’s camp would argue — aggressively — that allowing Watson to be asked about other sexual encounters is no different than asking a female sexual assault victim about other sexual partners or activities. In our view, it’s very different. Watson is the alleged aggressor, not the victim. If, in contrast, Watson were claiming that he was sexually assaulted by one or more massage therapists, it would be irrelevant for them to defend the case by arguing that he voluntarily submitted to sexual encounters with other massage therapists. Here, Watson is accused of trying to make a massage something more than a massage. If he experienced other massages that became something more, it would explain whether supposed accidental touching during the massage was perhaps a precursor to something else.
Fourth, some have argued it’s not fair to the 18 massage therapists to have their sexual encounters (if any) with Watson disclosed to the world. Beyond the fact that they chose to get involved by submitting statements of support on Watson’s behalf, there are ways to protect their identity, via the use of pseudonyms or court orders restricting the information.
Bottom line? If it can be shown that Watson had a pattern of engaging in massages that became something more, it’s relevant to his state of mind when securing massages with each of the 22 plaintiffs. Watson and his representatives surely don’t like it; it hurts their case. Regardless, it’s fair game when the question is whether he had a habit of hiring massage therapists and hoping that the massage would take a sexual turn — and whether he affirmatively tried to make that happen.