Roethlisberger and Prosecutorial Discretion

Barhopping with friends in Milledgeville, Ga, to celebrate his 28th birthday, Pittsburgh Steelers' quarterback Ben Roethlisberger apparently picked up a 20-year-old woman and may or may not have sexually assaulted her in a bathroom.

On April 12, about five weeks after the March 5 incident, Ocmulgee Circuit District Attorney Fred Bright announced he would not bring rape charges against Rothlisberger. The young woman told police she had been sexually assaulted, and a medical examination showed evidence of vaginal bleeding, as well as a cut and bruises. There was insufficient DNA to make testing viable, however, and Bright was concerned about the challenges of proving guilt beyond a reasonable doubt.

"We do not prosecute morals. We prosecute crimes," the prosecutor plausibly told the press. In some ways, that is a valid distinction. It's very difficult to convict a star athlete, past or present, in this type of case. The Kobe Bryant case in Colorado in 2004, which turned on whether the sex was consensual, was ultimately dismissed by the judge amid concerns about revictimizing the alleged victim. A year earlier, former Minnesota Twins star Kirby Puckett was acquitted of groping a woman in the bathroom of a restaurant in Eden Prairie, Minn.

Unlike those two incidents, however, the Roethlisberger case could conceivably be distinguished because the woman involved may not even have been of legal drinking age. According to the facts made public, Roethlisberger paid for shots of alcohol for the young woman and her sorority sisters. And that alcohol could in turn have undermined her ability to give full consent to whatever acts occurred in the bathroom with Roethlisberger.

Though the DA chose not to bring charges, Roethlisberger has not escaped consequences entirely. NFL Commissioner Roger Goodell, ever vigilant in protecting the league's image, quickly met wtih Roethlisberger and is considering a possible suspension or mandated counseling. Goodell takes his disciplinary role seriously, as he showed last season in insisting on a proper show of remorse from Michael Vick before reinstating him after Vick served a federal prison term for involvement in an egregious dog-fighting operation.

And then there's the court of public opinion. Roethlisberger may not be in for a public shaming by the Steelers' owners, as Tiger Woods was at the hands of Augusta National Chairman Billy Burke. But he would do well to consider the message his alcohol-fueled actions are sending to the thousands of boys who follow football so faithfully.