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Week in Review

By Chris Helsel

FSU Quarterback Jameis Winston Cleared of Conduct Code Violation for Alleged Sexual Assault, Could Still Face Lawsuit

Florida State University (FSU) quarterback Jameis Winston has been cleared of violating the school's conduct code after a hearing involving an alleged 2012 sexual assault.

The incident occurred in December 2012, prior to Mr. Winston's freshman football season, during which he would win the Heisman Trophy (the nation's most outstanding football player) and lead his team to an undefeated record and national championship. While FSU was aware of the allegations as early as January 2013, Mr. Winston was not asked to discuss the case until following that season, in January 2014. He declined. In April, State Attorney William Meggs announced that his office lacked sufficient evidence to pursue criminal charges, and acknowledged the shortcomings of the Tallahassee police investigation.

Although Mr. Winston was cleared of criminal charges, under Title IX the university was required to conduct a hearing to determine whether the alleged assault constituted a violation of its code of conduct. Retired Florida Supreme Court chief justice Major B. Harding was tabbed to oversee the school's internal investigation and hearing. Justice Harding ultimately determined that insufficient evidence existed to satisfy the preponderance of the evidence standard required to establish a violation of the conduct. Justice Harding noted that Mr. Winston and his accuser offered radically different accounts of what transpired that night, and that the only two eyewitnesses supported Mr. Winston's version of the events (it should be noted that both men were Mr. Winston's FSU teammates). The justice also pointed to the medical exam evidence and testimony of the nurse who treated the accuser, both of which he deemed "inconclusive."

In a letter to Mr. Winston, he said, "I cannot find with any confidence that the events as set forth by you, [your accuser], or a particular combination thereof is more probable than not as required to find you responsible for a violation of the Code... In sum the preponderance of the evidence has not shown that you are responsible for any of the charged violations of the Code."

Mr. Winston's accuser retains the right to appeal, or file a civil suit. An appeal of the FSU conduct code hearing can only succeed on three very narrow grounds: 1) fundamental due process error, 2) hearing officer biased, or 3) newly discovered evidence. Given Justice Harding's status as a highly-respected former state chief justice, and the fact that the accuser did not object to his appointment as hearing officer, it seems unlikely that an appeal will succeed on bias grounds. Additionally, because the alleged attack occurred over two years ago, both witnesses were friends and teammates of Mr. Winston, and the only video recording of the event has been deleted, it does not appear likely that any new evidence will surface.

Further, from a timing perspective, an appeal would be effectively moot. If he were found to be in violation of the conduct code, Mr. Winston faced expulsion from FSU. His accuser has five "class days" to file an appeal, but because the school is currently on winter break, the deadline is not until January 14th. Under the code of conduct, an appeal hearing would be scheduled within 10 class days of the school receiving the request, with a decision to be communicated within 15 class days after the hearing. Given this timeline, the earliest that Mr. Winston could conceivably be expelled from FSU would be late January or early February of next year. FSU is scheduled to play in the national semifinal game on January 1st, and then possibly the national championship 11 days later. After these games, Mr. Winston is expected to drop out of school and enter the NFL draft, rendering any subsequent expulsion moot.

However, Mr. Winston's accuser may well file an appeal, regardless. Hearing records are evidence that the accuser could use against Jameis Winston in a lawsuit - they are subject to the privacy of education records, but are subject to subpoena. Therefore, despite the mootness of any potential punishment from the school, Mr. Winston's accuser is expected to appeal in order to create a record.

From there, she could file a civil lawsuit. The evidence and witness testimony would be similar, but civil courts operate under different procedural and evidentiary rules than university hearings and it is possible that a jury of her peers could be more sympathetic than a retired state chief justice. Further, Mr. Winston's accuser can raise additional claims in a civil suit, like intentional infliction of emotional distress, which are not available under the FSU code of conduct.

It certainly appears that a lawsuit represents Jameis Winston's accuser's only real chance of success. Her attorney, John Clune, echoed the sentiments of many observers with his comments following the announcement that Mr. Winston had been cleared: "There are certainly glaring bases for appeal, but at some point we have to recognize that Florida State (University) is never going to hold Jameis Winston responsible."


Experts Call For Far-Reaching New Laws Regulating Sale of Antiquities

History, as they say, has a habit of repeating itself. For as long as nations have waged war against one another, the collateral damage has nearly always included invaluable art and cultural artifacts. This is no different in the modern world from when the Ancient Romans carried home obelisks from their conquest of Egypt. In fact, according to one official with the International Museum Conference in Paris, perhaps 95% of dealings in the international antiquities market are to some extent illicit.

In Berlin last week, 250 antiquities experts met to discuss ways to help war-torn Middle Eastern nations protect their cultural property amidst the continuing violence that plagues the region. Iraq, Syria and Afghanistan have been especially vulnerable to looting in recent years. While many nations have enacted laws restricting the illicit trade of antiquities, the experts gathered in Berlin now call for a greater universal effort to police these illegal dealings.

The first international attempt to regulate the trade of antiquities was enacted at the Unesco conference of 1970, which is now applied by 127 countries. Unesco, the United Nations' organization for education, science and culture, has also joined the fight against illicit trafficking and destruction of priceless art and other cultural artifacts. This month, the organization's director, Irina Bokova, called for a complete ban on such trade with Syria and Iraq, in light of the ongoing violence and political turmoil in those countries.

However, any such international action is only as effective as the measures taken by the national governments that must enforce it. Russia, for instance, has steadfastly refused to return German art treasures seized by Soviet troops as they raced toward Berlin in the later days of the Second World War.

At the Berlin conference, officials representing New York's Metropolitan Museum of Art, the Louvre, the Berlin Pergamon Museum and the British Museum, among others, called on national governments to implement more stringent laws and regulations. Until now, the United States, to its credit, has been called the "most advanced" in curbing illicit trade in cultural goods, after enacting 5-year renewable agreements with about a dozen affected countries. This year, however, the Germans are looking to take the lead. Proposed new legislation would require documented provenance for any object entering or leaving the country. For imports, under the new law, dealers would be required to produce a valid export permit from the source of a piece's origins before legal entry into Germany.

This new legislation would represent a major step in the fight against the illicit trade of cultural goods. As described by Neil Brodie, an antiquities expert at the Scottish Center for Crime and Justice Research, under the new law one would now "just have to prove something is not guilty, but show that it is innocent."


American Artist Accused of Copyright Infringement for a Fifth Time

For the fifth time in three decades, American pop artist Jeff Koons has been accused of copyright infringement. Of the four suits brought against him before, he has lost three. The current accusation arises from a piece included in his "Banality" sculpture series, currently on display at the Musée National D'art Moderne in the Centre Pompidou in Paris, the French national museum for modern art. The sculpture, which depicts a pig and two penguins approaching a female mannequin lying on her back, is eerily similar to a 1985 advertisement for French clothing retailer Naf Naf. The Koons' sculpture dates to 1988, and sold at auction in 2007 for $3.7 million. Both the Koons' sculpture and the Naf Naf advertisement are titled "Fait d'hiver."

The creator of the Naf Naf campaign, Franck Davidovici, has accused Koons of stealing his idea. In light of the allegations, Centre Pompidou has removed the sculpture from the exhibit. However, the Centre's president, Alain Seban, has defended Koons and the museum's display of the piece, arguing that the Banality sculpture series' "very principle... is to draw on objects bought in shops or images seen in the press." Mr. Seban emphasized that the piece was withdrawn only upon request of the lender.

In a previous similar case, Mr. Koons was sued for copyright infringement over a sculpture depicting a couple holding a row of blue puppies that resembled a photo taken by photographer Art Rogers for greeting cards. In that case, Mr. Koons argued that his sculpture was a parody, and therefore protected from attack under copyright law. The Second Circuit rejected that argument. Rogers v. Koons, 960 F.2d 301 (2d. Cir. 1992).


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