Legal experts: Big Ben may pay even if innocent

RENO - The woman accusing Ben Roethlisberger of raping her last summer will have a difficult time convincing a judge and jury she was assaulted in the star quarterback's penthouse hotel room partly because she never reported it to police and waited a year to file a civil lawsuit.

Several lawyers and legal scholars say the 31-year-old employee of Harrah's Lake Tahoe hotel has the added chore of taking on a casino in Nevada, where the gambling industry wields considerable clout.

But she may have a chance of winning an out-of-court settlement from the Pittsburgh Steelers quarterback known as "Big Ben" because millions of dollars in endorsements are at stake for the two-time Super Bowl winner, legal observers say.

"The question they are going to be asked right out of the chute is why did she not file a complaint with the police?" said Dick Gammick, the district attorney for Washoe County in Reno who is not involved in the case.

Cal Dunlap, the woman's lawyer, who is the former Washoe County district attorney, has refused to comment. "The entire matter will be tried in court and not in the media," he told AP on Friday.

The woman, an executive VIP casino host at Harrah's at the time, said in the lawsuit that Roethlisberger lured her to his room under false pretenses and raped her during a celebrity golf tournament last summer. She's seeking a minimum of $490,000 plus punitive damages. The suit filed in Reno last week also accuses Harrah's officials of covering up the alleged assault and going to great lengths to silence her after she says she reported it the next day to the hotel's security chief.

Roethlisberger, 27, said Thursday the allegations are "reckless and false."

"I would never, ever force myself on a woman," he said, and vowed to fight the claim in the courts.

Harrah's officials refused to comment.

Scott Freeman, a Reno defense lawyer whose clients have included the infamous Mustang Ranch brothel, said it is "highly unlikely" she will prevail in what shapes up as a he-said, she-said case like the one involving NBA star Kobe Bryant.

"There is no evidence of the alleged sexual assault, other than her saying it," Freeman said.

In 2003 a 19-year-old employee at a Colorado hotel accused Bryant of raping her, but in that case, the accuser filed a police complaint.

Bryant said the sex was consensual. The charge was dismissed after the woman refused to proceed with the criminal case and an undisclosed settlement was reached.

Deborah Rhode, a professor at Stanford Law School who specializes in sex and the law, said that in addition to apparently not having any evidence, the accuser has no witnesses, a history of depression and some "obvious financial motives - none of which makes her a very appealing complainant."

"That said, it may well have happened. There are certainly more than enough examples of factual settings like this where celebrity athletes feel entitled," she said. "But that is not going to win a case."

Freeman said Roethlisberger's play at the tournament again last week "would be consistent with innocence." The 6-foot-5, 240-pound first-round draft pick out of Miami of Ohio in 2004 appeared on the cover of the tourney's 20th anniversary commemorative program with Michael Jordan, Charles Barkley and John Elway.

"He wasn't in hiding," Freeman said.

David Houston, a Reno lawyer whose high profile clients include Hulk Hogan and Joe Francis of "Girls Gone Wild" fame, said a court victory is doubtful, but a settlement is probable.

"Anytime you put famous athletes in the gun sights they start to lose endorsements, the public relation teams get involved and crisis management takes over," he said. "You start computing dollars for every day it goes on and at some point everybody starts talking about mitigation rather than did he do it or not."

Roethlisberger signed an eight-year contract extension worth $102 million in 2008. He also is earning at least $2.5 million annually in endorsements, Sports Illustrated reported last month.

The lawsuit says the woman didn't go to the sheriff because she feared Harrah's would side with the sports star, who is a friend of the hotel-casino's regional president John Koster, and she would be fired.

She said when she reported the alleged assault to Harrah's security chief, he told her she was "over reacting," that "most girls would feel lucky to get to have sex with someone like Ben Roethlisberger" and that "Koster would love you even more if he knew about this."

The lawsuit said that from August to December she was treated at five hospitals for depression and anxiety stemming from the alleged assault, and returned to work each time after treatment.

Houston said her medical records will be admissible because she made her treatment an issue in the lawsuit.

"The big question is when she first checked in (to the hospital) did her medical records show that she said 'I got raped by Ben and that's why I'm here?"' he said. "If she didn't share a true medical diagnostic from the start, I think she's going to be sunk."

The suit claims Harrah's security chief gained the trust of her parents while she was hospitalized and persuaded them to give him a key to her home. It said the chief and others entered her home and erased data from her computer and confiscated it.

"It's a very unusual case because she is accusing not just Roethlisberger of rape but also Harrah's of orchestrating a conspiracy, sneaking into her room a la Watergate to erase and destroy evidence," said Jason Maloney, vice president of Levick Strategic Communications, a Washington D.C.-based "crisis communication" consulting firm for athletes and entertainers. "Is it true? It could be true. It is definitely bizarre."

Maloney said the statement Roethlisberger made Thursday was "unusually strong."

"It's something you don't often see in a lot of cases like this. Athletes mishandle this sort of thing all the time. I think it is a sign of a confident defendant," he said.

Reno lawyer Ken McKenna represented a cocktail waitress at Harrah's Reno who challenged the company's policy requiring women to wear makeup while on duty - a case that went to the 9th U.S. Circuit Court of Appeals before she lost in 2006.

"It is difficult for the employee to go up against the big employers, especially the gaming employers in the state of Nevada, no question about it" he said, recalling the difficulty he had in persuading any of the woman's co-workers to come forward with evidence. "They fear retaliation."

Houston said alleged sexual assault victims traditionally have won sympathy from juries, especially in civil cases where the burden of proof is "clear and convincing" evidence, unlike a criminal case where the guilt must be proven beyond a reasonable doubt.

But he said that has changed in recent years "because people are so conditioned to watching celebrities be hit by folks who just want to get into their pocket - especially after Kobe Bryant and the Duke lacrosse team."

McKenna said Nevada judges have a reputation for dismissing such cases before they go to trial.

"The question is not what will a jury think or can you win in front of a jury, but can you get through the process to get past the judge in a system that has a high propensity to rule in favor of the employer."