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Susan Estrich
10 Feb 2016
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A Quarterback's Bad Calls


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.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



13 Comments | Post Comment
I believe rapists ought to be strung up by their...thing. However, young ladies shouldn't go to bars looking for guys; they're putting themselves in jeoplardy. Not all the guys in bars are like daddy. Please girls, use common sense!
Comment: #1
Posted by: Early
Fri Apr 16, 2010 6:22 AM
I'm afraid that expecting the NFL to do anything other than have a chat with Ben. If there arn't criminal proceddings, not ony are they not motivated but they'll have to face the Players Union. A lot of truly bad behavior in all elements of society is ignored because of fear of litigation and/or this feeling that if it isn't illegal it's OK.
My personal belief is that what's legal is the bare minimum standard by which we should live.
Comment: #2
Posted by: Dave Kidd
Fri Apr 16, 2010 9:00 AM
I'm afraid that expecting the NFL to do anything other than have a chat with Ben. If there arn't criminal proceddings, not ony are they not motivated but they'll have to face the Players Union. A lot of truly bad behavior in all elements of society is ignored because of fear of litigation and/or this feeling that if it isn't illegal it's OK.
My personal belief is that what's legal is the bare minimum standard by which we should live.
Comment: #3
Posted by: Dave Kidd
Fri Apr 16, 2010 9:01 AM
Well it sure sounds like Roeth. is a cad. What a surprise. I do have to say that poor judgment abounds on all sides here. Ladies, women, girls - why are you getting drunk at a bar without your OWN bodyguards? I'm serious. This guy is a star athlete, outweighs you by 100 lbs, probably trains night and day, and here you are doing shots as if he, or anyone, can be trusted?

No one deserves to be raped. No one "deserves" to be mauled by a tiger at a zoo, either, but anyone dumb enough to get in that cage is taking that risk. If you're gonna drink like a fish, do it with wimpy office workers whose grip you can easily break. And for God's sake plan ahead so you have a way to get home other than a stranger's car.

And for you, Roeth, your bad judgment WILL get you sued, and it should. It's up to you too to have good judgment and not get stinking drunk with strange young girls at bars. You can afford an escort or three. Even with a paid escort, you should be protecting her and not mauling her. If you can't control yourself, maybe YOU should cut back on the drinks, too, and have a handler with you at all times to keep you out of trouble. Not just a bodyguard - a chaperone.
Comment: #4
Posted by: Red Ree
Fri Apr 16, 2010 10:09 AM
Your point is well taken. Roethlisberger appears to be an immoral person. The truth will be revealed when and if the girl files a civil action against him. Good luck with that though, several factors remain a mystery. What were the "sorority girls" dong at the time, and what about the "bodyguards" who presumably escorted them in to the bathroom. Were they turning a blind eye to a crime? What I find offensive is Roethlisbergers cheap despicable abuse of his celebrity. What I have heard about Benny is he's a arrogant self-absorbed jerk. (ESPN Radio) Why can't he be more like Tiger and pay for his sexual encounters, rather than getting young girls drunk and luring them in to bathroom stalls
Comment: #5
Posted by: Billy
Fri Apr 16, 2010 10:44 AM
Comment: #6
Posted by: Robert
Fri Apr 16, 2010 12:45 PM
Comment: #7
Posted by: Robert
Fri Apr 16, 2010 12:45 PM
you and so many others focus on one party of these ordeals yet refuse to place focus on the ladies who sleep with married husbands (tiger woods or kobe bryant ordeal) or willingly drink at a club untilt hey are unable to function which opens the door to rape or worse (note the story int his article or natalie halloway). why won't you call these women what they are????

when will you all write a story telling these women to stop being stupid, stop sleeping with other womens husbands, putting themselves in victim position, and make better choices with their lives????

How about THAT article?? How about some balance of responsibility for BOTH participants??

i think ben is an idiot.

however, this young lady on her own free will went to a bar, consumed alcohol before ben started hanging out with them, and she continute to consume more alcohol, without a gun to her at any point in this ordeal, and yet she carries no responsibility for her actions which opened the door to her possible being abused or raped??

tell your women to make better choices in life, in the men they decide to sleep with, have children with, marry. etc......and stop blaming men for your problems.

this young lady set what happend to her in motion and should recognize it by her poor choices, not because ben is out on the street like come common rapists stalking women from the parking lots or behind bushes or breaking into their homes. again he is is an idiot and should know to not trust women because of his bank account or celebrity status so he should pay for dumb decisions as well. but he is only HALF of this ordeal. and the lady is an idiot as well in her own way.

Comment: #8
Posted by: christopher
Sat Apr 17, 2010 7:22 AM
Agree Suzie, probably more thugs in NBA and NFL than there are in Chicago
Comment: #9
Posted by: Paul
Sat Apr 17, 2010 9:26 AM
Dear Ms. Estrich,
As a California Democrat who lives far from Washington DC, you probably have an interesting opinion on whether Mickey Kaus has legitimate concerns regarding union control of the Democratic party. I know you are a beneficiary of the public pension, and for that reason, you would have an interest in perpetuating the climate of public pension take-over of the state budget. However, I also think you are intelligent and can see beyond just the party politics of who wins elections.
Questions: Do you agree with Mr. Kaus that the SEIU should not control the Democratic party?
Please get back to political punditry.
Comment: #10
Posted by: susan
Sun Apr 18, 2010 7:59 AM
Seems like the problem with the civil case is that the plaintiff's lawyer almost always advises his/her clients to settle the case out of court and take the money. Celebrities like Ben R. have lots of money so are typically willing to settle. The issue is, after all is said and done, these cases can look like shake downs. Nobody gets to see the evidence or hear about the trial. I still think its your best idea, and I would advise the girl to proceed on that front as well. I am just pointing out the typical limitations of that avenue.
Comment: #11
Posted by: scott365
Mon Apr 19, 2010 7:50 AM
"Rape is a hard crime to prove. Almost by definition, there are rarely any witnesses." So the rapist and his victim are usually unconscious when it happens?
Comment: #12
Posted by: JohnEMack
Mon Apr 19, 2010 9:31 AM
Susan, nice article about Roethlisberger. The problem with the NFL imposing any type of fine or suspension, is it is not in there best interest. The NFL is composed of so many players that have the mindset that they are above the law, the NFL cannot afford to go after these players. Lose the stars you lose the fans. Lose the fans the NFL starts losing money. You can be assured the league will not let that happen.
Comment: #13
Posted by: Gary Rager
Tue Apr 20, 2010 6:28 AM
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