A. Background
I am a plaintiff’s civil law attorney who loves sports. When sports and civil litigation intersect, my hobbies and my career collide and I tend to pay close attention. Lately, that intersection occurred with the 22 sexual misconduct cases filed against Huston Texans’ quarterback, Deshaun Watson.
There are a few things to clarify before jumping into such a high-profile case. First, I cannot speak to the guilt or innocence of Deshaun Watson. Due process is key and everyone, regardless of allegations, is innocent until proven guilty. Deshaun Watson has a legal right to defend himself against any accusation.
Second, the allegations in this case are sensitive. Sexual misconduct is terrible regardless of the circumstance. I am a man; I do not pretend to know what women deal with on a daily basis due solely to their gender. I am sensitive to these issues and I try my best to understand, but again, my perspective is limited.
However, even with my limited perspective, it is important to speak out against shaming survivors of sexual misconduct in any circumstance. It is possible to achieve due process without pointing a finger at the survivor in a sexual misconduct case.
B. The Big Issue
If you have read or listened to any sports news lately, you have heard of this case. The details of the allegations are readily available, for a short background, all 22 cases arise from alleged sexual misconduct towards massage therapists and the allegations are troubling.
Shortly after Ashley Solis, the first survivor to come forward, filed a lawsuit, reports leaked that before filing the lawsuit she, through her attorney, attempted to settle her claim against Deshaun Watson for $100,000. Deshaun Watson and his representatives have called this, “hush money.” Some in the media, and Deshaun Watson supporters, have used this settlement offer to accuse Ms. Solis of exploiting a rich football player. This narrative is absurd, both morally and logically.
C. The Legal Recourse in a Civil Lawsuit – Money
There are two types of legal claims, criminal and civil. The claims currently brought by Ms. Solis and the other survivors against Deshaun Watson are civil claims. The police are investigating the criminal claims. It is important to separate the two.
Civil law is very limited. The recourse in a civil lawsuit is money. Why? We stopped taking an eye for an eye a long time ago. I wish I could file a lawsuit that would heal my client physically and emotionally, but that is not reality, the only direct legal outcome of almost any civil claim is a monetary settlement or award.
Ms. Solis’ attorney likely explained the process to her in some variation of the following, “We will take all of your information and evidence to the police so they can open a criminal investigation. However, what they and prosecutors decide to do is out of my hands and yours. What you can do is make a civil claim against Deshaun Watson and seek compensation for the damage and harm he caused you.”
Now put yourself in Ms. Solis’s shoes. She is claiming a public figure sexually assaulted her. How has that gone for survivors in the past? Disiree Washington, who Mike Tyson was found guilty of raping, was first called a gold-digging opportunist. Katelyn Faber, Kobe Bryant’s accuser, had a prime time news slot ran on her where old friends talked about how she would do anything to become famous. There are countless examples of this, but you get the point. The media has a history of shaming survivors. Now, with social media, that narrative proliferates because every misogynist has a keyboard and a platform.
In a civil claim, Ms. Solis can seek monetary compensation in one of two ways. First, she could settle her claim. The media would never know her name and hopefully, it would be a wake-up call to Deshaun Watson and would change his behavior. In the alternative, she could file a lawsuit. The suit is public, she will be hounded by the press, drug through the mud, and ultimately it would be her word against his, and at the end of the day, if she wins (and that is a big if), the outcome is the same – she receives money.
I would recommend to nearly every client sitting in Ms. Solis’ seat to try to settle the claim before filing a lawsuit. Not only does it avoid a public trial, but it would also save countless hours of heartache, she would avoid racking up attorney fees, and she can do her best to try to move on with her life knowing she did the right thing by speaking out. Also, at the end of the day, like it or not, all she can do is receive money.
One may ask, but where’s the justice? That comes in criminal proceedings. Just because a plaintiff accepts a civil settlement does not preclude a criminal investigation. Yes, the amount of the settlement would likely be confidential, but she could still take her information to the police, remain an anonymous survivor, and seek justice through those proceedings.
Seeking to settle her claim before filing a lawsuit is not requesting “hush money” it is making a logical legal decision. Of course, she is seeking money. Again, that is her only legal recourse.
When Deshaun Watson and his representatives refused to settle the claim, Ms. Solis had two options, drop the claim or file a lawsuit. She decided to take the excruciating, public route and filed a lawsuit. Something I am certain she did not want to do; otherwise, she would have never sought to settle the claim in the first place.
D. Why is this Important?
Deshaun Watson could be innocent and this could be a money grab. He could also be guilty of every allegation. However, seeking to settle a civil claim does not reflect a survivor’s credibility, and using that information to discredit sexual misconduct allegations is misleading and wrong.
There is a long history of the media and accusers blaming and shaming sexual misconduct, abuse, and rape survivors when they come forward with these types of allegations. In this case, Deshaun Watson and his legal team are using a settlement offer to persuade people to believe Ms. Solis is merely seeking to exploit him through hush money. In other cases, the accused blames the survivor for what she was wearing, drinking, or who she was with. These narratives are toxic and have to stop.
When we accept these narratives as routine, it dissuades other survivors from coming forward when they are victimized. Statistically, an estimated 63% of sexual assaults are never reported to the police. False Reporting – National Sexual Violence Resource Center, nsvrc.org. When a sexual misconduct survivor sees the shame, allegations, and accusations aimed towards other survivors, of course it dissuades them from reporting the incident. This cycle only allows perpetrators to continue to assault others.
We, as a society, have shamed sexual misconduct survivors for too long. We need to do more to help survivors feel comfortable in the reporting process. Whether a survivor decides to settle her claim or file a lawsuit is dependent on the facts of each case, but it is legally illogical and morally wrong to use this information as a tool to diminish a survivor’s credibility.
