On New Year's Day 2015, quarterback Jameis Winston will lead the Florida State Seminole football team onto the playing field at the Rose Bowl for the first semifinal game of the NCAA's college football playoff. Most fans of the college game know that Winston, the winner of the 2013 Heisman trophy, had been accused of engaging in unconsented sex with a fellow student, the latest in a series of misdeeds that have characterized his two years on the Tallahassee campus. The university appointed former Florida Supreme Court Chief Justice Major B. Harding to conduct the investigation. Harding concluded that a predominance of the evidence did not support a finding of Winston's responsibility, which would have led to his expulsion from school.
Many observers have criticized the FSU proceeding as another example of the distorting role that football plays on college campuses and the immunity enjoyed by the stars of the college game. Justice Harding, however, was a fine jurist, and it is unfair to besmirch his reputation by the suggestion that he was motivated to insure that the university would not lose its quarterback before the big game. His ultimate judgment, however, does warrant review and, if found failing, criticism.
Justice Harding was applying the Florida State University Student Conduct Code, which prohibits as sexual misconduct "any sexual act that occurs without the consent of the victim, or that occurs when the victim is unable to give consent." The issue he was appointed to determine was one of consent. Although there was other evidence in the copious record, Harding began his opinion by stating that Winston and his accuser were "the only persons with personal knowledge as to what actually happened in the bathroom" where the alleged sexual attack occurred. His ultimate conclusion that the case was not proven was based on his finding that "the evidence regarding the events that unfolded between you and [the accuser] once in your room is irreconcilable."
It is not unusual in cases such as this one and in many other similar adjudications for the critical testimony of the two main actors to be found "irreconcilable." The setting for those cases might be a criminal or civil courtroom or even in a private labor arbitration. For example, in a case where an employee is discharged for sexually harassing a fellow worker, it is common for the testimony of the accused employee to contradict the testimony of the victim. As a result, some advocates wrongly believe that such cases involve a "one-on-one truth telling contest," and, as a result, the adjudicator can never find that the incident occurred. That is not the case, however.
Arbitrators, judges and juries often have to make credibility determinations based on all the surrounding circumstances and make an informed judgment as to what is likely to have occurred. They examine the issue of motive. Who had a reason to lie? They examine prior conduct to determine which story is more consistent with prior behavior. They look at concurrent behavior: what did the witness do right after the alleged event occurred? Finally, they consider the demeanor of the key witnesses during their testimony.
None of these approaches to fact-finding are easy or infallible. Some witnesses lie; some tell the truth; others simply have differing perceptions of the same event. In all instances, however, the adjudicator must reach a judgment. Justice Harding did not:
"In light of all of the circumstances, I do not find the credibility of one story substantially stronger than that of the other. Both have their own strengths and weaknesses. I cannot find with any confidence that the events as set forth by [Winston, his accuser] or a particular combination thereof is more probable than not as required to find [Winston] responsible for a violation of the Code. Therein lies the determinative factor of my decision."
Fortunately, the Harding decision is not the last word on this incident or on Jameis Winston. The victim can bring a civil suit for damages. In that setting, the conflicting stories will be weighed in a court of law. The judgment will be informed by the credibility determination that Justice Harding said he was unable to make.
The ultimate decision, however, will be made by the clubs of the National Football League. Winston aspires to quarterback an NFL team and will stand for the draft either after next season or the season thereafter. The National Football League has newly found its business conscience. Players who engage in domestic violence or other such execrable conduct will not long pursue fame, glory and riches on the NFL's playing fields. The issue the 32 clubs will face is whether Winston is worth a high draft choice if his off-field exploits in college present a pattern that might continue. They will be the judge and jury.
Jameis Winston and the Florida State Seminole football squad will face a worthy opponent in the Oregon Ducks. Outcomes in sports' contests, however, do not measure anything other than a team's athletic performance on a particular day. Winston and others like him will face the judgment of public opinion long after that game is over. There is no question that an unconsented sexual attack is worthy of our censure. Ultimately, then, we will decide what happened that night in 2012.