At approximately 2:00 p.m. local time, people in Pittsburgh, PA and around the country took a break from their day to learn that Ben Roethlisberger would not be criminally prosecuted for the alleged sexual assault of a college student in Georgia. The District Attorney who made the decision not to prosecute was clear he could not prove the case against Roethlisberger, “beyond a reasonable doubt”. That standard of proof is used universally throughout the United States as the benchmark of guilt–if someone is guilty “beyond a reasonable doubt”, then they are legally guilty of a crime. If a prosecutor can’t prove that a crime occurred “beyond a reasonable doubt”, then it would be unethical and unconstitutional to go forward with the prosecution. Nonetheless, the facts in a case, including in Roethlisberger’s situation, may be enough to prove that he broke the law “more probably than not”. That is the burden of proof for a plaintiff in a civil lawsuit for personal injury or sexual assault and battery. Thus, if the alleged victim chooses to file suit, she and her attorney must do so with a good faith belief they can prove an injury, assault, or battery was committed on a, “more probable than not basis”. In time, we will learn if the Georgia incident will result in a civil lawsuit against Roethlisberger just as the Nevada incident gave rise to a sexual assault lawsuit without criminal prosecution. While there are many reasons why there may be a civil case but no criminal case, the different burden of proof fundamentally explains why this duality can legally occur in our justice system.
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