Experts Analyze the Jameis Winston Lawsuit and What It Could Mean In Future Cases

"Jameis Winston did not rape Erica Kinsman."

So begins the lawsuit filed by Jameis Winston, Heisman Trophy-winning quarterback at Florida State and the first overall pick in the NFL Draft, against Kinsman in federal court on May 8.

The suit denies something that Kinsman has maintained since December 7, 2012: that early that morning, Winston raped her.

"Ms. Kinsman has told many different and inconsistent accounts of her sexual encounter with Mr. Winston," the suit alleges, as part of a "false and vicious media campaign to vilify Mr. Winston with the objective of getting him to pay her to go away."

The suit, which specifically charges Kinsman with defamation, is a direct response to the suit that Kinsman herself filed against Winston in state district court in mid-April. Between the two filings, the Tampa Bay Buccaneers drafted Winston and reportedly signed him to a four-year deal worth $25.35 million. Kinsman's hometown is roughly 30 minutes from the Bucs' stadium.

Like Kinsman's suit against Winston and the one she filed in January against FSU, Winston's countersuit offers little clarity in the ongoing case. It is a public relations move as much as a legal maneuver, part of a complicated, ongoing dance between the two sides. A close read of the suit suggests that the case will likely end after a drawn out litigation process in a way that will be unsatisfying for everyone involved.

Winston, of course, did not need to file a countersuit. But doing so is not unheard of. In February, the University of Oregon and its basketball coach, Dana Altman, countersued a woman who said the university had failed to adequately protect students when the team recruited a player whose dismissal from his previous program was linked to a sexual assault allegation. The school quickly dropped their suit. Just last month, NFL player Ray McDonald filed a suit against a woman who accused him of sexual assault. However, Winston's suit is in response to Kinsman's, while McDonald's was proactive, there not being any suit against him at the time (the woman has since countersued).

Alan Milstein, a lawyer who has litigated for Allen Iverson, Carmelo Anthony, and Maurice Clarett, told VICE Sports that "if somebody accuses you of a crime, and it is a false accusation, then it wouldn't be that out of the ordinary to try a defamation claim." In fact, Milstein says, "if he didn't do it and it was consensual then this is a pretty good move." Winston was already facing a financial risk with Kinsman's lawsuit against him. By filing his countersuit, Milstein says, Winston puts "the stakes on both sides so that essentially both people have something to lose if the other side wins."

Julie DiCaro, a former lawyer and contributor to 670 The Score in Chicago, agreed with Milstein, explaining that defendants are most likely doing so "to put pressure on the plaintiff, saying that they'll drop the counterclaim against the plaintiff in exchange for whatever it is the defendant wants." At the same time, DiCaro says, "I think the defendants are hoping to be able to out-litigate the victims. Meaning they'll have their attorneys file as much paper as possible and will try to bankrupt the victims out of pursuing their cases."

Winston likely will have a tougher time avoiding scrutiny and avoiding financial loss if his case makes it to trial.

"In defamation cases," DiCaro says, "there are different standards for public and private figures. Public figures have to prove not only falsity but malicious intent, and that's why these cases are very difficult for them to win."

Milstein says that Kinsman only has to meet a preponderance of evidence, which "means you put them on a scale and if the scale tips ever so slightly one way or the other" then that becomes the deciding factor. For Winston, on the other hand, the burden of proof is higher than 51 percent. Winston must find clear and convincing evidence (which is not as high as the "beyond a reasonable doubt" of criminal cases). "Will a jury understand the subtle difference between preponderance of evidence and clear and convincing?" Milstein asks, "I would tend doubt it."

The malicious intent on Kinsman's part, according to Winston's suit, is that she lied and defamed him in order to force him to pay her in exchange for her silence. "Ms. Kinsman demanded that Mr. Winston pay Seven Million Dollars ($7,000,000) and promised that Mr. Winston would not hear from Ms. Kinsman again," the suit alleges.

That number has been floated by Winston's attorney, David Cornwell, since late September 2014. In a 13-page letter he sent to FSU, Cornwell said that in February 2014, Kinsman's lawyer "demanded $7 million to settle potential claims against FSU, the Tallahassee Police Department and Winston."

But Kinsman's lawyer told the Tampa Bay Times that it was Mr. Cornwell who initiated the negotiation over settling. "The facts are that Mr. Cornwell chose not to disclose that it was he himself who reached out to our client's former counsel Patricia Carroll to discuss paying off our client," John Clune, Kinsman's attorney, told the paper. Clune also said "his client's main concern was holding Winston accountable, not money, and that Cornwell threatened to sue for civil racketeering."

In addition to claiming that Kinsman has "tarnished Mr. Winston's reputation and public image," Winston's suit also argues that he has lost endorsement deals and income due to Kinsman's allegations. DiCaro says "it's going to be tough for his team to prove he lost endorsement deals because of the rape allegation, as opposed to all the other stupid things he did well at FSU, which I'm sure is what the victims defense team is going to argue."

If Winston's suit makes it to trial, Winston will have to testify, which will be the first time in this entire case that he will have to speak about what happened that night. He was never interviewed by TPD or the State Attorney investigator, and was only asked two questions in his disciplinary hearing. He has released statements through his counsel, read a prepared 5-page statement at his hearing, and has now filed this countersuit.

Kinsman, on the other hand, has told her story repeatedly since the night she reported it to the police. This is part of what makes her side of things so ripe for picking apart. In that first 24-hour period alone, she told her story to the woman who called 911 on her behalf, to the FSUPD officer who reported to the scene, to the TPD officer at the hospital, then again later in the day to the same officer at the station, and finally in the form of a handwritten account.

Winston has escaped the same level of scrutiny simply by not having to tell his story. Finally, he will. Maybe. There is a good chance the case never gets to trial, and ends instead in a settlement.

DiCaro says that people who report being sexually assaulted turn to the civil litigation because there can be "a real feeling by the victim that they've been wronged, both by the defendants and by the system. Of course, money is also a factor I would think." But she doesn't mean that people bring the civil suits out of greed, but rather because that is the only form of punishment left to them. "That's how we solve our civil disputes in this country," DiCaro says.
"You open up your checkbook and you write someone a check to cover damages."

For Milstein, that particular aspect of these cases—the money—is troubling. "In my experience," he says, "a lot of people think that all you have to do is sue an athlete and it's an easy way to get money, and they're easy targets. And they tend to settle the cases to stop the publicity." The bigger the case and more high-profile the athlete, the more willing a lawyer is to take the case on, he says, because of the potential payout and the attached fame. This extends to the media, too. "People like to write about athletes being sued," he told me. "They are targets not only of people wanting to get money out of them, they're targets, I think, of the media." The media, wanting to dish on a high-profile athlete's troubles, feeds into the willingness of a lawyer to take the case, which then make it an even a bigger deal as lawsuits are filed and the case drags out.

Winston filing this countersuit could make a difference for other high-profile athletes who find themselves defendants in such cases. "I think if he's successful it certainly will be something that other high-profile defendants might consider," Milstein says. For him to "take a very aggressive stand and fight to the end," he continues, "it certainly might dissuade others from seeking these high-profile athletes out as targets."

That is if, as his countersuit claims, Winston truly is a target and did not in fact rape Kinsman. Regardless of how the litigation plays out, it feels unlikely that anything approaching the truth will reveal itself. If the suit goes to trial, there is the possibility of an outcome in which no one wins: no burden of evidence is met. If it is settled out of court, the legal system won't get the final word on whether Jameis Winston raped Erica Kinsman.