In December, Twins slugger Miguel Sano was accused of violently assaulting a photographer, Betsy Bissen. Sano has unequivocally denied the allegations. But the report of the incident led to an investigation by Major League Baseball under the “Joint Domestic Violence, Sexual Assault and Child Abuse Policy” and “Joint Treatment Program for Alcohol-Related and Off-Field Violent Conduct” in the CBA. On February 27, as part of that investigation, Major League Baseball investigators interviewed Sano for four hours.
The entire process has set off something of a free-for-all on the internet, with people taking sides between Sano and his accuser, throwing around terms like “sexual assault” and “due process.” Under such fraught circumstances, however, precision in one’s language is ideal. So let’s try to clear up some of the confusion.
There’s been a debate regarding whether Sano has been accused of sexual assault, simple assault, or something else entirely. Again, this is not to say that Sano is guilty of any offense. However, it’s probably worth asking the question: assuming Sano actually did what he is accused of, what law would it violate? As for the answer, it really depends upon the state in which the incident has occurred, because there is actually a pretty big disparity between states as to what constitutes a sexual assault.
In this case, we’re looking at Minnesota law. I’m a civil litigation attorney, not a criminal attorney, and we’re dealing with issues here where it’s really important to get the law right. So I spoke with a Minnesota private criminal defense attorney, Erica E. Davis, Esq. from Davis and Egberg, PLLC in Minneapolis, to get her thoughts.
Davis believes, at the very least, that Sano “could clearly be charged” with misdemeanor assault. Under Minnesota law, “assault” is “(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another.” Here, we’d probably be talking about misdemeanor assault in the fifth degree under Minn. Stat. § 609.224. Davis said that, for purposes of this statute, if we assume the allegations are true, Sano “clearly caused [Bissen] bodily harm.” She emphasized Bissen’s allegations that her wrist hurt the next day and that she repeatedly told Sano she didn’t want to go with him.
But the larger question people have been asking is whether Sano committed sexual assault. Davis believes that there are some prosecutors who would charge Sano with attempted criminal sexual conduct in the fourth degree (“CSC 4”), which is covered by Minn. Stat. § 609.345, subd. 1(c). That statute prohibits the use of “force or coercion to accomplish the sexual contact.” Attempted crimes are covered by Minn. Stat. § 609.17. Proving CSC4 under those statutes would require the prosecutor to demonstrate that Sano took a “substantial step” towards the criminal sexual conduct.
But Davis believes that proving attempted CSC4 beyond a reasonable doubt, which is the applicable standard of proof in any criminal trial, would be difficult. First of all, under Minnesota law, no actual sexual contact (defined here) ever occurred. Instead, the prosecutor would have to use circumstantial evidence of sexual intent, and Davis told me that’s pretty weak in this case.
Here’s how she explained it:
“Here the only evidence would be the attempted kissing and wrist pulling. It doesn’t sound like he was saying any words showing his intent, nor does it seem he was groping her, putting his hands into her clothing or pulling at her clothing which would be better evidence of a sexual intent.”
The larger issue, Davis explained, would occur if a prosecutor charged Sano with CSC4, and he later pleaded guilty to misdemeanor assault. That’s because “if [Sano] is charged with a CSC offense and then convicted of (through a plea or guilty finding at trial) of any offense arising from the same circumstances, he will have to register as a predatory offender with the State of Minnesota for a period of time [at least 10 years].”
One last point on this. While Sano may not have committed sexual assault under Minnesota law, he may have done so for purposes of Major League Baseball. Interestingly, the CBA definition of “sexual assault” is far broader than most state statutes, “refer[ring] to a range of behaviors, including a completed nonconsensual sex act, an attempted nonconsensual sex act, and/or nonconsensual sexual contact. Lack of consent is inferred when a person uses force, harassment, threat of force, threat of adverse personnel or disciplinary action, or other coercion, or when the victim is asleep, incapacitated, unconscious or legally incapable of consent.”
So that’s the matter of which crime Sano would have hypothetically committed. Now let’s move to our other main consideration — namely, due process and whether Sano is getting it.
The term “due process” actually comes from the Constitution — the Fifth and Fourteenth Amendments, to be precise. The Fifth Amendment states that a person cannot be deprived of life, liberty, or property without “due process of law.” And the Fourteenth Amendment states that a State may not “deprive any person of life, liberty, or property, without due process of law.” If you’re wondering whether that’s duplicative, it’s actually not: the former imposes a due-process requirement on the federal government, while the latter imposes a due-process requirement on state governments. But what’s important to note here is that, in both cases, the requirement is imposed on governments. How do we know that? The words “of law.”
And courts have reiterated this. In cases like Desiderio v. NASD, Courts of Appeals have ruled over and over again that, for a person to be entitled to due process in a legal sense, we have to be talking about a “state actor” — in other words, a government or someone acting on the government’s behalf. As a matter of law, ordinary people don’t owe due process to anyone at all.
So we know that due process is something that applies to a government, but what is it? There are two types of due process: substantive due process and procedural due process. But for our purposes, we can look at it this way, as explained in a case called Collins v. City of Harker Heights: procedural due process is simply a guarantee that whatever procedure is used to determine whether you are to be deprived of life, liberty, or property is fundamentally fair, while substantive due process protects certain types of special liberty interests.
Trust me when I say that we can (and should) leave substantive due process alone here. It’s not relevant to our discussion. Even if it were, a full explanation of substantive due process would take up most of this site. (Even the Supreme Court declares that “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” That’s the legal equivalent of saying, “We don’t know exactly what this is.”)
It’s procedural due process about which most people are talking when they use the term. But procedural due process, distilled to its essence, is basically just your right to a fair trial. As one court put it in Conestoga National Bank v. Patterson, procedural due process is
“… law in the regular course of administration through courts of justice, according to those rules and forms which have been established for the protection of human rights… Its essential elements are ‘notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause.
Translation: if you, as a private citizen, choose to believe Sano’s accuser, you are not depriving him of due process, because you didn’t owe him any to begin with. (Unless, that is, you happen to be a judge or juror.)
In other words, due process is being notified of a government or quasi-government proceeding and having an opportunity to participate in it fairly. It’s also not equivalent to a presumption of innocence, either, although that’s become part of due process in criminal proceedings. Most people are surprised to learn that the Constitution nowhere explicitly contains a requirement that people be presumed innocent. Courts added that requirement later; in a case called Pagano v. Allard, the court does a fairly decent job of explaining how courts interpreted the Fourteenth Amendment to graft a “presumption of innocence” onto procedural due process after that amendment was ratified. In other words, due process requires that a judge and jury presume a defendant is innocent before trying them for a crime and make the state prove it. It doesn’t require that FanGraphs readers (or Sano’s employer, for that matter) do the same.
So now we come back to Sano. He hasn’t been charged (as of now), and he’s not on trial, so our legal definition of due process doesn’t even apply yet.
But let’s expand our definition of due process to include MLB’s investigative proceedings. Article II of the Joint Domestic Violence, Sexual Assault and Child Abuse Policy lays out a very specific procedure for both investigations and discipline under the Policy. To outside appearances, at least, that procedure is being followed, including an opportunity to be heard by the investigators and an appeal right. In other words, Sano’s been able to present his side of the story in what seems, at least, to be a fair and confidential process.
What punishment Sano will receive, if any, is a matter of speculation at this point. The Policy allows for a range of penalties ranging from suspensions to fines, with some pointing to Aroldis Chapman‘s 30-game suspension, Jose Reyes‘s 52-game suspension, and Hector Olivera’s 82-game suspension as possible benchmarks.
But this case is different, I think, and lacks real precedent. Unlike Chapman, Sano isn’t accused of using a firearm. Unlike Olivera and Reyes, charges haven’t been filed against Sano. (Although that can, of course, change.) Those would seem to be mitigating circumstances, but then there is also this: Chapman, Olivera, and Reyes were accused of domestic violence. Sano’s alleged victim was neither a friend nor a romantic partner. And depending on your point of view, that can be an aggravating factor, a mitigating factor, or a non-factor altogether.
Special thanks to Erica E. Davis, Esq. for her help. It’s much appreciated.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.