On Thursday, April 16, two weeks shy of the NFL draft, Erica Kinsman filed a civil complaint against Jameis Winston, the FSU quarterback who will almost certainly be one of the draft's top picks. Kinsman is suing Winston for "sexual battery, assault, false imprisonment, and intentional infliction of emotional distress arising out of forcible rape" that she says happened early on the morning of December 7, 2012.
The lawsuit—obtained by VICE Sports and embedded at the bottom of this report—contains two new bits of information that could prove damaging for Winston. The first is then-Winston teammate Ronald Darby's remorseful Facebook message after the assault—Darby is one of two FSU players who was present the evening of the assault. The second is that Kinsman's legal team has located the cab driver who took Kinsman to Winston's apartment the evening of the assault—something both the Tallahassee Police Department and state attorney's office had failed to do.
According to the suit Kinsman filed against Winston, on the evening of December 6, 2012, she met Winston—whom she did not know or recognize at the time—at a popular bar just off of FSU's campus. While there, a man who she believed to have been Winston "offered [Kinsman] a shot of an unknown liquor, which she consumed." She eventually ended up in a cab with Winston and two of his teammates, Chris Casher and Ronald Darby. Back at Winston and Casher's apartment, she says that Winston took her into his bedroom, removed her clothes, and raped her despite her protests. While Winston had her on the bed, the suit says, Darby and Casher were watching, with Casher filming part of it. The Tallahassee Police Department (TPD) did not interview Casher until November 2013 and by that time he said he had deleted the video and gotten rid of the phone.
The complaint adds a new wrinkle to this story: "Darby also entered the room but told Winston, 'Dude, she is telling you to stop,'" it reads. In response, Kinsman says, "Winston picked her up in a fireman's carry, walked her into his bathroom, deposited her onto the hard floor, and locked the door." Kinsman says that Darby then left. For the first time ever, we learn that on December 9, "[Darby] posted to his Facebook page 'I feel the worst I almost felt in my life Smh #stupid.'"
On the same day in November 2013 that the TPD publicly released a heavily redacted version of the initial police report, Casher and Darby, at the behest of Winston's lawyer and before police could interview them, drafted affidavits of what they remembered from that night 11 months earlier. In his affidavit, Darby said nothing about trying to stop Winston and instead swore that after Casher "walked in Jameis' room and the girl told Chris to get out," she then "got up [and] turned off the light and shut the bedroom door." Darby was was interviewed by the TPD 2 days after giving his affidavit. In that interview he did not say anything about intervening. Instead, he backed up what he said had sworn to two days earlier.
Kinsman reported the assault to the TPD with a couple of hours, the officer noting then that Kinsman "was having a hard time remembering what exactly happen [sic] and in what order they happen [sic]."
An hour later at the hospital, while getting a rape kit done, she told a TPD officer that Winston removed her clothes, raped her in the bedroom, was interrupted by "possibly the suspect's roommate" who told him to stop, and was then taken to the bathroom where Winston continued the assault. Later that same day, she went to the police station where she once again told her story to the TPD, both in a handwritten statement and verbally to a detective.
At the disciplinary hearing FSU held in December 2014, roughly two years after the night she first reported the assault, Kinsman again recounted this same series of events: Winston undressed her, raped her on the bed, she told him no, he was interrupted when his friend intervened, he took her to the bathroom, locked the door, she struggled, he pinned her down and covered her face, and then he raped her again.
Kinsman was unable to identify her perpetrator at that time but she told the TPD things like the man's roommate's first name (Chris) and that the roommate was the only freshman starter on the football team. Those two facts alone should have been enough to find the man since Chris Casher was the only true freshman playing football for FSU. Kinsman would first learn Winston's name on January 10, 2013, when she and Winston attended the first day of class and were enrolled in the same one. She called the TPD that day and told them she now knew the man's name.
Winston has never been interviewed by the police or the state attorney's office, and refused to answer questions at the disciplinary hearing. He did read a five-page statement, though, in which he affirmed, "she willingly engaged in multiple sexual acts with me with her full knowledge and consent. I did not rape or sexually asault [Kinsman]. I did not create a hostile, intimidating, or offensive environment. In the short time period that we were together [Kinsman] had the capacity to consent to having sex with me, and she repeatedly did so by her conduct and verbal expressions."
Later, when asked by the judge overseeing the case about how Winston knew Kinsman was consenting, Winston said she did so "verbally and physically." When pressed to explain, he said, "Moaning is mostly physically. Well, moaning is physically. And verbally at that time, Your Honor."
No charges were filed in the case. Winston was found not to have violated FSU's student code of conduct. The state attorney, Willie Meggs, told the press in December 2013 at the time he announced that he was not pressing charges, "We have a duty as prosecutors to determine if each case has a reasonable likelihood of conviction. After reviewing the facts in this case, we do not feel that we can reach those burdens." A big reason for not being able to reach those burdens stemmed from police failure to investigate the crime when it was initially reported.
In her new civil suit against Winston, Kinsman has requested a trial by jury and "respectively demands judgment against [Winston] for money damages in excess of $15,000, costs, and such other and further relief as the Court may deem just and proper." The standard of evidence will not be like the criminal court Meggs would have faced had he pressed charges. It will be, rather, like the FSU disciplinary hearing, the one where the judge found them equally credible.
In this new case, though, Kinsman is clearly going to bring up a second possible sexual assault case against Winston. She first introduced this case in the lawsuit she filed against FSU in January. It appears again in this one: "On October 25, 2013, Plaintiff's victim advocate at FSU informed her that a second woman had come forward and reported being sexually assaulted by Winston."
Kinsman also appears poised to argue that FSU athletics might have intervened at some point early on. "On January 22, 2013," the complaint reads, "the FSU Athletics Department was in contact with the Tallahassee Police and learned that Winston had been identified as the suspect in Plaintiff's violent sexual assault. High-ranking members of the football department met with Winston and his lawyer, whom FSU officials arranged for Winston, to discuss the rape accusations." This mimics what she said in her suit against FSU, though it is less pointed. In January, her complaint stated that Jimbo Fisher and athletic director Frances Bonasorte among other "high-ranking FSU Athletic Department football officials" led a "deliberate concealment of student-on-student sexual harassment to protect the football program" which "deprived Plaintiff of her rights under Title IX and caused substantial damages." She said that this meant "for the next eleven months, FSU did nothing to investigate Plaintiff's report of rape while the FSU Athletics Department continued to the keep the incident a secret." Mike McIntire and Walt Bogdanich wrote in the New York Times in October 2014 that after "senior Florida State athletic officials met privately with Mr. Winston's lawyer, they decided, on behalf of the university, not to begin an internal disciplinary inquiry, as required by federal law."
Finally, it appears that Kinsman's legal team has found the cab driver from the morning of December 7 that the TPD and state attorney were unable to locate. In her complaint, Kinsman says, "the cab driver observed the Plaintiff appeared to be impaired." This is a curious sentence because, so far, no one had located the cab driver. Whether Kinsman got into the cab on her own, whether she was intimidated into getting in the cab, and whether she knew what was happening while in the cab are questions that were raised during the disciplinary hearing and by people who question whether she has lied about the entire incident and is covering up for consensual sex she later regretted. What the cab driver has to say could matter deeply in how this case is perceived, especially regarding Kinsman's ability to consent that night.
Winston's lawyer, David Cornwell, released a statement to the media on Friday morning saying, "This stunt was expected. Kinsman's false accusations have already been exposed and rejected six times. This time will be no different. Mr. Winston welcomes the opportunity to clear his name with the truth. Mr. Winston is looking forward to the upcoming draft. He will not permit this ploy to distract him as he begins the journey of fulfilling his lifelong dream of being a championship quarterback in the National Football League."
Cornwell has said in the past that Winston would possibly countersue if Kinsman ever brought a suit against his client. It appears Kinsman and her legal team, armed with the new information in their suit, are not intimidated by that possibility.
Editor's Note: Updates have been made to this report in order to clarify the timeline of events as it relates to Ronald Darby's Facebook post.