My point is, what would the lawsuit allege? What would the cause of action be? Suppose I’m raped. Then I walk into the police station with a signed confession from the guy, plus the information that there were 47 videocameras recording the assault. The police do nothing: they do no investigation, they don’t arrest the guy, nothing. I want to sue them. What do I sue them for?
But as I said earlier it could be supposed that the failure to get the bar video or cab driver report might not necessarily help Ms. Kinsman…as it could just as easily support the Winston side of the story. She and her lawyer would know if a civil complaint against the police would be advantageous and perhaps that is why they dropped their intentions…no one knows least of all us. Although in general, I’m in favor of improving police investigation and reporting almost always and especially in these tangled rape cases.
The law suit against the police would be a U.S.C. Sec 1983 civil rights action (federal court) that a state agency violated her civil rights by not …(whatever-prosecuting, investigating, arresting) It is a very difficult action to support. She most likely has to file a claim against the state, and when that is denied, then she’d file the action. Administrative law first, then federal suit.
Same with a suit against the university. It is a state entity, so she’d file a claim, then perhaps a notification of intent to bring suit, then the federal law suit claiming her civil rights were violated under Title IX (but not a title IX law suit).
Would it be in Tallahassee? Probably (assume there is a federal court that sits in Tallahassee), but whichever District court is there would draw jurors from the entire district, so they might not be from Tallahassee.
OK, so I read up a little bit on USC Sec 1983. And it seems like I can sue a city or a person if federal law gives me some right, and the city or person violated that right. But do I have a right under federal law for the police to investigate an alleged crime that I report? Are police required by federal law to investigate and prosecute every crime reported to them?
That’s what you are arguing, that you have the right, that the police have the obligation to investigate properly, and that the police action (inaction) was a violation of your civil rights.
As I said, it ain’t easy.
Are there examples where people have successfully sued a city police department for failing to investigate one particular crime report?
It seems like suing the college would be an easier task. Title IX, a federal law, gives me specific rights about known rapists.
It’s very difficult to get a handle on the chain of events of this case. The timelines read like a slow motion train wreck. In retrospect what’s coming seems so obvious that it’s hard to understand how FSU’s administration could have been so clueless for so long.
My understanding is that Kinsman beefed up her legal team midstream (in early 2014) and that the second set which included sexual assault specialist John Clune were more aggressive than the first.
To me, the weakest links in the chain are first, the possibility of collusion between FSU’s athletic department and the Tallahassee police and secondly, the anemic reaction of FSU’s Title IX Office.
This is the timeline that FSU released about 6 months ago.
http://www.wctv.tv/home/headlines/FSU-Releases-Open-Letter-Timeline-of-Current-Title-IX-Investigation-Involving-Jameis-Winston-278783881.html?ref=881
A representative from FSU’s Victim Advocate Program was on the scene with Kinsman in the hospital right after the rape, but due to confidentiality didn’t (or couldn’t) advise FSU’s Title IX office that a student had filed a police report accusing another student of rape.
Were the advocates also “duty bound” not to inform FSU’s administration? According to the NYT article the Tallahassee police advised the Athletic Department that Winston was under investigation in January 2013.
Yet, the police did not notify the University (meaning the administration, it seems) until 11 months later, in November 2013, when a media tornado was imminent. The administration is also implying that neither the Athletic Department nor the campus police advised the administration or the Title IX office of the alleged rape which sure smacks of collusion and concealment to me. If the administration knew and didn’t take action, then that’s negligence. If they didn’t know, then that’s almost worse!
After the media bomb exploded, FSU conducted a Title IX investigation, presumably without the complainant’s involvement since at that point Kinsman’s new attorneys had cut off all contact between her and the University. Why couldn’t they have done that a year earlier when the incident occurred? It wasn’t until August 2014 that Kinsman’s attorney allowed her to participate in a Title IX interview, but by then Winston’s attorney wouldn’t allow HIM to participate.
According to FSU’s statement sometime in September 2014 Judge Harding “held a two-day hearing, heard from the plaintiff, the respondent and 10 witnesses before releasing his decision.”
What does “heard from the respondent” actually mean? Did Winston answer the judge’s questions in person? The only quote I’ve ever seen from Winston is the one involving “moaning.” Did he ever tell his side of the story, in his own words, not his lawyer’s?
I don’t know if what went on between Winston and Kinsman was sexual assault or consensual sex, but it does seem to me that both the police and FSU are guilty of trying to protect Winston and the university and in doing so failed to protect Kinsman: A classic definition of a Title IX violation. What’s unclear to me is how high up in the administration knowledge of the coverup went. In other words, what did the administration know and when did they know it?
Friday the university response is due, I would imagine not too long after that the court documents will be public and this case will finally be in an actual court system although this case is against the university and not the accused. The who,what,when and where is documented with regard to the police, so this will primarily be about the who, what, when and where the administration knew and what employees of the university did. Doesn’t help her legal claim of rape, but if she wins this she can get some financial restitution to pay the lawyers, etc.
I’m just guessing but this is probably a major part of what will be disputed (from the Dear Colleague Letter http://www.whitehouse.gov/sites/default/files/dear_colleague_sexual_violence.pdf )
and this:
I couldn’t find where there was a federal law that athletic departments have an obligation to school administration - but it makes total sense post-Penn State. If I recall the timeline the police told the athletic department employee that one(or more) of the players was being investigated…seems on surface that there would have been at a minimum a moral obligation to inform the Title IX coordinator who in turn would notify administration if required…the athletic director would not have known that Ms Kinsman did not want to cooperate with the university investigation and/or wanted confidentiality whichever it was and the Title IX coordinator would have to proceed based on the Dear Colleague guidelines. The college is reporting that they gave Ms. Kinsman accommodations and counseling so again I’m not clear if that meets Title IX obligations when the complainant does not want to go forward with a hearing. I’m just unclear on the foggy timeline so I just can’t tell whether the Title IX officer knew before or after the police/athletic department discussions. Administration are saying they didn’t know, but I’m not sure if that means the Title IX officer at FSU didn’t know…
Regardless in my opinion this will be another important civil suit against a university that will shape how colleges and universities respond under the Title IX guidelines. I’m kind of glad now that dStark “made” me take a closer look at it. It touches on what it means when an accuser requests confidentiality and what does that actually mean with regard to a colleges responsibilities. It touches on responsibilities of individual staff and employees to report things they hear as a third party to the Title IX investigator. It touches on how a college should legally respond in the absence of a formal grievance by an accuser…it will be interesting.
I would just note that we all fancy ourselves effective judges–in the court of public opinion. Real judges have a much more difficult task. And part of the difficulty we are seeing is what happens when people with little training try to function as judges.
Yes 'mI pretty firmly in the camp that colleges and universities shouldn’t be involved in investigating, or adjudicating etc. but since I can’t change the world 
now I’m enjoying (if you can enjoy these train wrecks) watching how the civil suits will shape Title IX in reality for the future in case the next political “house” doesn’t tighten it up on their own. This case, was deemed not prosecutable by the local authorities/prosecutor and was deemed 50/50 by a retired college judge who steppped in for the actual Title IX college case…this civil case is a case by the accuser against the college on a number of issues not related to guilt or innocence of the accused although it sounds like the premise of the case is that her Title IX rights were violated so definitely my area of interest (people claiming their rights were violated by Title IX activities). But these suits pretty much take a year - so it will be a long time.
If the below is true and the documentary evidence is there, it’s could be legal wrangling over minutia in the actual legal obligations of the university.
Couple of thoughts about the FSU case.
- The toxicology evidence pretty much destroys the complainant's story and credibility. It is an extremely weak case.
- Definitely screw ups in the investigation by the cops and FSU. No question about that.
- Quite likely the video evidence that was not captured would have exonerated Winston (who I think is a complete dirt bag) from the rape charge. But still would have been highly embarassing and damaging for such a high profile guy who has had a number of other very public screw ups.
- I'm struck how this incident has almost nothing to do with the college. None of the events happened on campus. No evidence that Winston and the complainant had ever met before they wound up in the same bar one night. Not sure they even knew each other was an FSU student. FSU's connection to this is incidental/coincidental. Given the huge size of FSU (29,000 undergrads), it would be incredibly easy to keep these two away from each other for the balance of their time there. They might never encounter each other again even if no stay away order was imposed.
Yet the school (as is always the case) winds up being the primary focus of the incident. The rationale for FSU’s involvement here is so weak. But given the cluster that is title ix policy in this area, the school is just such an easy target and, of course, it has deep pockets.
So far, the two law firms representing the complainant (who don’t do this for pro bono charity) probably have a pretty good money case based on #2 above. Despite #1 above.
The complainant has not yet sued Winston. Could be that her lawyers are waiting for him to sign a $$$ NFL contract first and don’t want their filing to get in the way of that. Or could be that there won’t be a suit against Winston ever. Because of #1 above.
Call me cynical.
Wait—how can colleges not be involved in investigating an alleged violent crime that occurs on the campus, or even by students anywhere? If Virginia Tech taught us anything, it’s that colleges need to be on the lookout for the potential for widening violence, and be involved in shutting it down early.
The FSU case is strange in that it’s hard for me to reconcile the accuser’s story with the toxicology evidence. Given the fact that she went to the police a few hours after the incident, and that she told a story of fragmented memory, I would have expected either that she was in fact drugged against her will, or that she was very drunk and had some kind of consensual or non-consensual sex with the guy. But if we believe the tox evidence, neither of those are true. They didn’t find any evidence of date rape drugs, and she had been drinking but seemingly nowhere near to alcoholic memory blackout levels: she showed up at the hospital with a BAC of .04, not even close to the alcohol limit for driving, let alone a level that would cause blackouts.
This is not a case where she was very drunk and can’t remember what happened. It’s not a case where she regretted the encounter some time later-- she immediately told friends she thought she’d been raped, and she went to the police within three hours or so. She can’t have maliciously wanted to smear Winston in particular, because she didn’t know his name. (Though she did know he was an FSU student, since she told the police he was a freshman FSU football player.)
We know that women who are very drunk become uninhibited and choose to do things they wouldn’t do while sober. But she wasn’t that drunk, and she believed immediately afterwards that she hadn’t consented, or at least so she said.
It just doesn’t make sense to me that she would go to the police and tell the story she told, given that she was not very drunk and hadn’t been drugged.
Are there some date rape drugs that are not tested for in tox screens? How accurate are tox screens?
The point northwesty is making is that this crime did not occur on campus. it happened at a local bar and a local apartment but Title IX says that doesn’t matter if one or both are students. The campus police were originally called and they turned it over to the local police because it was not their jurisdiction.The irony is that neither one of them is at the college anymore. They’ve both moved on. I doubt he was a threat to the campus dfbdfb or any other students, it was more that the FSU town supporters were a threat to her and her sorority.
This is probably abit of a money grab to offset her legal expenses and the colleges insurance company will probably want to settle and Winston is probably not worth another stab by her for a rape-centered conviction for a couple reasons.
If she were my daughter anyway I’d tell her not to sue Winston and drag it all through the muck and mud now not to mention she’ be portrayed as a gold digger because of the timing. If she were to have sued Winston in civil court it should have been a couple years ago, closer to the timing and when he was still in college. I can’t imagine a lawyer would advise a civil suit also because of the statements that have been made in the movie and to the press unless they align perfectly with her original story minus any embellishment then maybe, but she’ll need to weigh the advantage over her future job/career media exposure, etc. at this late date. If she were my daughter I wouldn’t have let the entire thing drag out for so many years.
“how can colleges not be involved in investigating an alleged violent crime that occurs on the campus”
The guy and gal met for the first time in a bar in town. Don’t know each other at all. They take a cab to a privately owned apartment complex. The incident happens there.
The university becomes the focus because the guy and gal happen to be two of 29,000+ undergrads at FSU. Presumably there’s zero title ix jurisidiction if all the facts are the same but one or the other happened at that moment to not be enrolled and just living in that town. The nexus to the school in this case is tenuous.
Except for the other student who also said that she had a questionable sexual encounter with Winston.
That is what doesn’t make sense here. Why would she pursue this if not true? Clearly, Winston did not treat her well, took her home on a scooter immediately after their encounter. Did she feel completely disrespected and want to get back at him (assuming for a moment that she did not say no)? Did she really intend to call this rape or just want to scare him? Or did she change her mind at some point in the encounter but thought no one would believe her unless she said she was incapacitated?
She did not initially press charges. She also did not know at the time that Winston was going to become as big a star as he has become. Perhaps her attorney/aunt is pushing this more than the woman is. Early on in the investigation, the aunt became the spokesperson for the victim.
By the way, at one point the victim (or her attorney) argued that the blood sample could not have been hers since it came back clean. It was retested and was definitely hers. There is no reason to believe the sample was doctored to protect Winston, since he was not a big star at the time. The police did do some investigation. I wonder if they put this on inactive when the tox screen came back negative and the BAC so low, and that she had not decided to press charges, If the tox screen had shown she was incapacitated, perhaps the investigation would have proceeded with more effort?
Many people do not believe the fellow football player friends. But the cops and DA were not able to catch them in lies. Even one of the girl’s friends testified that she was not drunk at the bar and that 3 of them were sharing drinks.
Is it common for a victim to have an outside attorney? That seems to be a complicating factor for me in considering this particular case - what influence does that attorney/aunt have on the woman’s pursuit of this case?
Of course, as Hunt said earlier today, we all want to analyze these cases and all we have is what is available. The truth is not easy to find.
“Why would she pursue this if not true?”
In my state, one bright bulb decided that lying about who you are, in terms of status, fame, or money, in order to gain consent for sex should be illegal.
I do not buy the “why would he/she lie?” explanation. It is inconvenient to be a victim, or to be ill, or to be in the news for the wrong reasons, but some people want attention, any attention.
And it is part of some people’s mental state to be able to prove to themselves what is true and not, by telling others about it and escalating a situation.
I am not saying she is a liar. But I am saying that it can be much more complicated, and the term “rape” assumes a binary “raped or not raped” status.
The second student only said she needed to talk about it, not to charge him. That could mean a lot of things, from concern about her own behavior to concern about how she was treated, to feeling like it was assault.