While it remains theoretically possible for a grand jury to indict Kane and for the Erie County District Attorneys Office to then prosecute him, it is generally difficult to secure a conviction in a rape or domestic violence case when the accuser will not testify and when there is an absence of supplemental evidence, such as DNA, that would corroborate the accuser, says McCann, the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law.
The case against Kane is also compromised by the bizarre development in September involving a purported rape kit wrapper that may have been supplied by the accuseds mother. The Buffalo News also reports that results from the actual rape kit failed to support the accusers contention that a rape occurred. Taken together, these matters raise serious questions about the strength of a potential case against Kane. This is important because prosecutors typically do not wish to prosecute a defendant unless they are certain that they can convince all members of a jury that the defendant is guilty beyond a reasonable doubt.
Although the accusers decision appears to free Kane from criminal concerns, it doesnt necessarily bring the matter to a close.
Her withdrawing cooperation in a criminal investigation doesnt preclude her filing a civil lawsuit over the same underlying accusations, McCann says. In a civil suit, she would likely bring four claimsbattery, assault, false imprisonment and intentional infliction of emotional distress. She would contend that Kane put in her fear of imminent harm (assault) and had sexual intercourse without her consent (battery). She would also insist that Kane prevented her from leaving the room in his home where the alleged rape occurred (false imprisonment) and that he willfully caused her severe emotional distress through extreme and outrageous conduct (intentional infliction of emotional distress).
The burden in a possible civil case brought by the accuser would be much lower than in a criminal prosecution against Kane, says McCann. While the Erie County District Attorneys Office would need to convince a jury beyond a reasonable doubt that Kane committed a crime, his accuser would only need to convince a jury that it is more probable than not that he violated a civil law.
If the accuser chose to go that route, a public trial would be a long shot. McCann says that civil lawsuits typically are dismissed or settled before they ever get to that point.
Kanes attorneys would first try to have the case dismissed, McCann explained. If that fails, it is possible, if not probable, that a settlement would be reached whereby Kane would pay the accuser an undisclosed amount of money in exchange for her agreeing to relinquish any civil claims she may have against him. A settlement would likely also contain a confidentiality clause that bars both Kane and his accuser from ever speaking again about the incident.
It might also leave open the question of Kanes guilt, but thats a trade-off someone in his position might have to make.
