Update, 11/6/15: Yesterday morning, DA Sedita finished his statement with “The District Attorney will not be holding a press conference.” But that didn’t mean he wouldn’t be doing interviews! It’s a 36-minute interview without a transcript or recap.
I’ve watched it. He doesn’t give much specific information about the evidence in the case, though he does say the woman’s DNA was not found on the bedding where she says he raped her and Kane’s DNA was not found in her underwear. Sedita says they were comparing the woman’s report, witness reports, digital data from cell phones, and forensic evidence. DNA was tested five times, he says. Sedita refuses to say the woman lied, just that part of her story (especially around the sexual assault) did not have enough credible evidence to support it. He can’t say anything about Kane’s version because he doesn’t know it.
Can I note one thing about these “he said/she said” cases? Because of how due process works, if you are accused of a crime, you absolutely do not (and probably should not) talk to the authorities. The reason is that once you tell a story, people can begin to pick it apart. Sedita does say in the interview, when the reporter notes that Kane never spoke to police, “Wish he had, woulda been nice…. That’s his right. But if you are going to ask me about the what the truth is about what happened, the absolute truth of what happened that night, I can’t answer that question because it’s frustrated by Mr. Kane’s non-cooperation.”
In these cases, the person who reports has to tell their story over and over again. And so it gets picked apart, by investigators and lawyers (because that is their job) but also by the public and the media. A regular pattern in these cases is people screaming, “but her story changed!” Yes. Have you ever told a story more than once? Ever under intense stress? Ever about a traumatic event that happened to you? This is not to say anything about this particular case but rather a general observation about how we talk about these cases. We so rarely take the time to see how the way the law works feeds into how our culture is set up to disbelieve people who report that they’ve been sexually assaulted.
Today, the Erie County District Attorney, Frank Sedita, issued a statement that reads:
The totality of the credible evidence — the proof — does not sufficiently substantiate the complainant’s allegation that she was raped by Patrick Kane and this so-called “case” is rife with reasonable doubt. Accordingly, the Office of the Erie County District Attorney will not present this matter to an Erie County Grand Jury.
Thus ends a three-month investigation that has taken place while Kane’s NHL team, the Chicago Blackhawks, faced intense scrutiny for allowing him to continue to practice and play, criticism about which they didn’t seem to care. The NHL itself also felt the heat. Then the woman’s mother lied to the daughter’s then-attorney about evidence in the case in order to imply corruption and intimidation on the part of someone with access to the rape kit.
There have been discussions about why we have to believe women when they report (or, at the least, not assume they are lying as our starting point), many invocations of the phrase “innocent until proven guilty,” and plenty of horrible commentary (both subtle and not) about the lying gold diggers who report that athletes have raped them.
In the end, the woman decided to no longer cooperate with law enforcement.
Then today, the DA put out his statement. The statement had four reasons he decided not to pursue a grand jury indictment or to press charges:
- “There are significant material inconsistencies between the complainant’s accounts and those of other witnesses.
- The DNA results lend no corroboration whatsoever to the complainant’s claim of penetration, a required element of proof for a rape charge.
- The physical evidence and the forensic evidence, when viewed in tandem, tend to contradict the complainant’s claim that she was raped on Kane’s bed.
- Although Kane has exercised his constitutional right to remain silent (which prohibits questioning by law enforcement), he has made no known incriminating statements to any civilian, nor has he engaged in any conduct consistent with a consciousness of guilt.”
Here is what we know at this point:
1) Kane is innocent under the law. He has been innocent under the law this entire time. He will remain innocent under the law.
2) We, the public, don’t know anything. The DA said “significant material inconsistencies” and “tend to contradict” which are vague phrases unless you are the DA and know what exactly he means. We aren’t the DA and, for now, aren’t privy to anything that explains either of those phrases.
3) The woman chose to no longer cooperate with law enforcement. From the DA’s statement: “She has recently signed what is commonly referred to as a “Non-Prosecution Affidavit” that states, in relevant part: “That after fully discussing all the circumstances with my attorney, I have decided I do not wish to criminally prosecute the charges which stem out of this investigation. I do so of my own free will and without any promises or compensation.”” We know nothing about why she made this decision. Nothing. We do know, though, that sexual assault cases are hard to prosecute because of the myriad ideas we have about sexual assault that undermine cases and scare off victims.
4) The DA’s statements were not just vague, but also kind of confusing. Let’s look at: “The DNA results lend no corroboration whatsoever to the complainant’s claim of penetration, a required element of proof for a rape charge.”
So, we know she got a rape kit very soon after the night in question and the kit was tested. But we don’t know what exactly this statement means. There was no semen in her vagina? No cells of his? How do DNA results corroborate a claim of penetration, exactly? What about condoms? Or failure to ejaculate? We don’t know any of this (see #2).
More specifically, my confusion stems from the DA writing, “penetration, a required element of proof for a rape charge.” Did he really mean ”conviction” but wrote “charge”? It’s an important distinction.
It’s one thing to say there is not enough evidence or what evidence exists is not enough for the DA to believe a jury will ever convict someone of the crime, and so it’s not worth the dedication of resources or time by the DA’s office to move forward. It’s another, though, to say that he can’t charge Kane without DNA results that corroborate that she was penetrated. I want to be clear on that. Because you don’t get a rape exam or a nurse does not collect a rape kit that can produce DNA evidence of penile penetration or that evidence does not corroborate what you say, you can still report being raped and a DA can still press charges.
5) There is no standard or consistent behavior that guilty rapists exhibit that somehow indicate they have committed a crime, in case you are trying to figure out why the DA took the time to tell the public “nor has [Kane] engaged in any conduct consistent with a consciousness of guilt.” Though, the reason for including that information could be the same one that led the DA to write, “this so-called “case” is rife with reasonable doubt,” with the words “so-called” there and then “case” in quotes. Makes you think.
UPDATE: in his interview, Sedita explains that “conduct” in more detail. Kane did not flee, try to tamper with evidence, or intimidate the witness.
6) Unless you are like one of a handful of people in the world, Patrick Kane is not your friend.
7) Buffalo. It was at Kane’s lakeside mansion outside Buffalo that the woman says Kane raped her. The city of Buffalo loves Patrick Kane. There is no shortage of evidence of this. While this story is a national one because Kane is quite possibly the most famous hockey player in the NHL (but also felt like a Chicago one because that is where he plays), this is a story actively happening in the community of Buffalo. There’s stuff like this: ”Patrick Kane was chauffeured by an off-duty police lieutenant on the night he was accused of raping a young woman at his home outside Buffalo. … He calls Kane a longtime family friend and says that Kane has employed him for the last five years.” The DA is from an old Buffalo family known for their civic roles. We know so little about the woman at the center of this case but we know she lives in/near Buffalo, too, as does her mother. Place and community matter, too. How they matter is hard to say from the outside but I can’t stop thinking about it what must be like to live through this whole thing in that particular place, where the person accused of the crime is a hometown hero who has employed an off-duty police lieutenant for years, with a DA who has a long civic family reputation to uphold, and a woman has brought a national spotlight on both of them.
We are all Jon Snow when it comes to this case: we know (almost) nothing. Let’s keep that in mind.
For people asking, “what’s next for Patrick Kane?,” I’m going to guess it’ll be the exact same thing he was doing before and during the investigation. I wouldn’t sweat it.
Kane is still legally innocent, just as he has been this entire time; in fact, he never came close to not being legally innocent. But none of us live in a courtroom. Whether people trust Kane or consider this resolution satisfactory is a whole other thing.