Winston defines 'consent' at hearing

ByMark Schlabach ESPN logo
Tuesday, December 23, 2014

According to a transcript obtained Monday by ESPN, Jameis Winston did answer questions from the retired judge overseeing the Florida State quarterback's student code of conduct hearing for an alleged sexual assault in 2012.

After initially declining to answer questions from retired Florida State Supreme Court chief justice Major Harding and his accuser, Winston gave brief answers to one question and two follow-up queries from Harding, according to a transcript of the two-day hearing.

Winston said he thought his accuser gave consent both "verbally and physically" during the encounter at his off-campus apartment on Dec. 7, 2012. Winston was charged with four violations of FSU's student conduct code, two related to sexual misconduct and two related to endangerment.

Under FSU's student conduct rules, Winston wasn't required to answer any or all questions during the Dec. 2-3 hearing. Instead, Winston read from a prepared five-page statement as his opening statement, and then referred to it again when questioned by Harding on the second day. Winston then cited the rule that permitted him not to answer questions: "From the Rule 6C2R-3.004(6)(d) of the Florida State Student Code of Conduct I'm not going to answer."

Harding then asked him: "And so you're not going to answer any additional questions?"

"Yes, Your Honor," Winston responded.

Harding then asked the woman if she wished to ask Winston any questions.

"Yes, we do," the woman said.

After Winston's attorney, David Cornwell, reminded Harding that the woman wasn't allowed to directly ask Winston questions during the hearing, the judge asked the woman if she wanted to submit written questions for him to ask. Her attorney, Baine Kerr, asked Winston if he intended to answer the questions before they took the time to email the questions to the judge.

"He has already answered by invoking the Rule," Cornwell said. "He does not."

Winston also said he was not going to answer.

Following a break that lasted more than one hour, the accuser's attorney entered emailed questions into the record. Harding then asked Winston one question of his own, even though Winston previously indicated he wouldn't answer.

"All right," Harding said. "I think it would be helpful, and I understand you have exercised your right, and you may continue to do so; but, from the purpose of helping the decision maker to understand, the Complainant has indicated that she continually resisted by saying no to your sexual overtures, and you have indicated that she gave consent. And I would like to know in what manner, verbally or physically, that she gave consent. And I ask that with the understanding that you have previously given."

After Winston initially hesitated to answer the question, Cornwell advised him that it was OK to answer, according to people who were in the room.

"Both, Your Honor, verbally and physically," Winston said.

"And what did she say and what did she do?" Harding asked.

"Moaning is mostly physically," Winston said. "Well, moaning is physically. And verbally at that time, Your Honor."

"Well, that was during the sexual encounter?" Harding asked.

"Yes, Your Honor," Winston said.

At that point, witness testimony ended, according to the transcript.

Sunday, after Harding cleared Winston, the accuser's attorneys, Kerr and John Clune, issued a statement, saying: "Of the four people in that apartment only one, our client, testified, and she answered any and all questions about what happened. The three football players, Jameis Winston, Chris Casher, and Ronald Darby, all refused to testify and answer questions and somehow Jameis Winston still wins."

In a post-hearing memorandum sent to Harding after the hearing, the woman's attorneys wrote that their client never gave verbal consent to having sex with Winston, which is required under FSU's student conduct code.

"These answers constitute the entirety of Respondent Winston's responses after almost two years of questions about the incident," the woman's attorneys wrote. "Even if, for the sake of argument, it is to be believed, it falls woefully short of the 'clear verbal consent' to 'each form of sexual activity required by [the FSU student conduct code].

"'Moaning' is obviously not clear verbal consent or even a clear verbal expression. 'Moaning' in no way communicates willing and clear participation in the sexual act, as consent is defined by the [student conduct code]."

"As summarized in the preceding paragraphs, the evidence regarding the events that unfolded between you and [the accuser] once in your room is irreconcilable," Harding wrote in his decision, which was sent to the parties on Sunday. "In light of all 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 you, [the woman], or a particular combination thereof is more probable than not as required to find you responsible for a violation of the Code."

"The transcript speaks for itself," Clune said. "There are apparently some people leaking self-selected information to the media so this will correct any misrepresentations."

In Cornwell's brief to Harding, which was obtained by on Monday, he wrote: "FSU's reliance on [the accuser] to establish a violation of the Code of Conduct is futile. [The accuser] has told many different and inconsistent accounts of her sexual encounter with Mr. Winston on the evening of December 6, 2012 and the morning of December 7, 2012. Her vicious yet inconsistent lies are motivated by the most insidious objectives -- greed."

In the brief, Cornwell wrote that the woman changed her story from her original statements to police and the state attorney's office, including allegations that a second, more violent rape occurred in the bathroom of Winston's apartment and that her memory loss was caused by unspecified trauma.

She also claimed for the first time that Winston gave her a shot of alcohol at Potbelly's, a popular bar near the FSU campus. Cornwell also noted that she didn't cry for help while entering a taxicab with Winston, Casher and Darby or when she exited the cab at Winston's apartment.

"Indeed, [the accuser's] new lies are fatal," Cornwell wrote. "Though [the accuser] has used this proceeding to execute a pre-determined civil litigation strategy designed to extort Mr. Winston, the inescapable truth is that a new lie does not eradicate an old one. The multiple lies simply prove that [the accuser] is lying."

Under FSU's rules and regulations, the woman has five days to submit a written appeal of Harding's rule. The appellate officer, typically FSU's dean of student, vice president or another designee, can review the file, request additional information or schedule an appeals hearing within 10 days of receiving the request. FSU would be required to notify the woman and Winston of the appeals ruling within 15 days of a hearing.

The appeals ruling can also be appealed to the State Attorney's Office for the Second Judicial Circuit in Tallahassee.

According to FSU's Office of Student Rights and Responsibilities: "On appeal, the burden of proof rests with the student to show clearly that a fundamental due process error that would substantially impact the outcome of the hearing has occurred during the first level hearing process."

"There are certainly glaring bases for appeal but at some point we have to recognize that Florida State is never going to hold Jameis Winston responsible," Clune and Kerr wrote in a statement. "We will consider an appeal but right now we feel a little duped."

Harding's ruling is a major victory for Winston in a high-profile case that has hung over him and the FSU program for more than two years. The woman reported the incident to FSU and Tallahassee Police on the night of the alleged incident. She didn't identify Winston as her alleged attacker until Jan. 10, 2013 after seeing him in class. About two weeks later, Winston declined to be interviewed by police.

Tallahassee Police classified the case as being "open/inactive" in February 2013 because it said the woman was uncooperative during its investigation. After media outlets requested the case file in November 2013, Tallahassee police turned the case over to the state attorney's office, which launched its own investigation.

On Dec. 5, 2013, state attorney Willie Meggs announced that his office wouldn't file criminal charges against Winston because he didn't believe there was enough evidence for a conviction.

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