A Civil Reaction
Attorney Susan Coler stresses that her client, referred to as K.R. in court documents, did everything "by the book" that day. When K.R. awoke at around 10:30 a.m. on December 22, 1996, she immediately went to a police station to file a report. In it she alleged, in as much detail as she could, how she'd been gang-raped earlier that morning by three acquaintances. She went next to the emergency room, where tests detected semen in her vagina, and the "date-rape drug" Rohypnol (generic name: flunitrazepam) in her system.
The Hennepin County Attorney's Office eventually decided not to press charges against the alleged perpetrators, whom K.R. identified as Brandon Sanford, Sergio Vargas, and Douglas Schneider. "I can't speculate on what was in the mind of the prosecutor," says Coler, who works at the law firm of Messerli & Kramer in Minneapolis and is now, as of a February 3 ruling by the state supreme court, pursuing the matter in Hennepin County District Court. "Nothing would've made her happier than to have a criminal case brought. But typically they make these kinds of decisions when they don't think they have a drop-dead win." Mary Hannon, the assistant county attorney who processed K.R.'s complaint, confirms that in prosecutors' view, "the evidence was not sufficient to result in guilt beyond a reasonable doubt."
In other words there were no witnesses--only a he-said/she-said tale that would make a seasoned criminal-defense attorney salivate. On December 21, 1996, K.R., who at the time was working as a bartender at the First Avenue and 7th Street Entry nightclub in downtown Minneapolis, agreed to arrange the purchase of a bottle of vodka from the club's stock for Vargas after her shift ended at 4:30 a.m. Buying booze to carry out after hours is illegal in Minnesota but, K.R. says, it was a privilege routinely granted to employees by First Avenue's management.
According to K.R.'s testimony in several court documents, this is what followed: To return the favor, Vargas agreed to give K.R. a ride home. When he picked her up, Sanford and Schneider were in the car. They all decided to stop in at a rave in northeast Minneapolis. Sometime around 6:00 a.m., the four decided to head to Sanford's apartment. There, Vargas opened the illegally purchased bottle. K.R. snorted a line of cocaine and had a drink. Everyone else drank heavily for the next two hours, mixing the vodka with grapefruit juice. At around 8:00 in the morning, Vargas suggested that he and K.R. "crash" for a few hours before going home. K.R. agreed (because, says her attorney, she didn't want to ride with a drunk driver). She also accepted a "roofie" (the street name for Rohypnol) offered by Vargas, which he said would help her sleep.
Almost immediately after swallowing the pill, K.R. got "woozy" and passed out. She drifted in and out of consciousness for the next two hours. During that time, she alleges, the three men raped her and took pornographic photographs of her.
When the Hennepin County Attorney's Office declined to pursue charges, K.R. approached federal prosecutors. Since Rohypnol is an imported substance, there was a chance the men might be pursued for violating federal drug statutes. Again, K.R.'s complaint hit a dead end. Finally she consulted a defense attorney, who recommended that she see James Wicka, a civil litigator then working for Messerli & Kramer.
The Minneapolis attorney had just negotiated a settlement in a high-profile case against actor Timothy Busfield, who, Wicka was prepared to argue, had sexually harassed his 17-year-old client on the set of the locally made film Little Big League. Wicka knew how to pursue sex crimes in civil court, where the standard of reasonable doubt is replaced by that of the preponderance of evidence. He had also spent years working as general counsel for Mothers Against Drunk Driving, so he was well-versed in state statutes governing the behavior of dram shops (establishments licensed to sell liquor).
Upon hearing K.R.'s version of events, he recommended that she bring suit against Vargas, Sanford, and Schneider for assault, battery, and violation of the federal Violence Against Women Act. (To date, authorities have been unable to locate Vargas or Schneider. Brandon Sanford's attorney, Craig Cascarano, says his client's position is that there was a sexual encounter that morning, but it was "totally consensual.") Wicka also advised K.R. to sue First Avenue and 7th Street Entry for allegedly selling liquor after hours--an act, he reasoned, directly linked to the events his client described.
After Wicka filed a lawsuit for K.R. in Hennepin County District Court on June 19, 1997, First Avenue's attorneys sprung into action, filing for summary judgment--the legal equivalent of a dismissal if awarded to the defense at the beginning of a civil lawsuit. Their argument was that if the illegal sale of alcohol had occurred (which First Avenue contests), K.R. was culpable; after all, by her own admission she was an active participant in the transaction. If she were complicit in the crime, the reasoning went, she wasn't allowed by law to sue her former employer for damages.
Hennepin County judge Thomas Wexler agreed. Wicka, who had since joined forces with attorney Susan Coler, challenged the decision in the Minnesota Court of Appeals, where it was overturned. First Avenue subsequently requested that the Minnesota Supreme Court review the appeal and make a final ruling. On February 3 of this year the justices upheld the appeals court decision: K.R. was indeed entitled to sue First Avenue.
In reaching its decision, the supreme court relied on an amendment passed by the Minnesota Legislature in 1990. That amendment allows an injured plaintiff such as K.R. to bring claims against a business establishment for illegally selling liquor, even if she participated in the deal. How blame for the sale should be assigned--in this case, to First Avenue or to K.R.--is something for a jury to determine, the court said. It did not conclude, however, that the alleged liquor sale and rape were related. Rather, the decision simply clears the way for Wicka and Coler to make that case back in Judge Wexler's courtroom this June.
Paul Banker, First Avenue's lead attorney in the matter, would not comment on the decision, nor would he offer specifics about pending strategy. Coler claims Banker has already indicated that he will file another request for summary judgment this spring, based on the argument that the sale of alcohol did not directly lead to K.R.'s injuries. If Wexler grants summary judgment on this claim, Coler says, she will go ahead and pursue Brandon Sanford separately. Unless First Avenue settles out of court, which often happens in civil cases, the issue of whether the alcohol brought about the alleged assault will be argued in front of a jury.
"We will use experts to talk about liquor and the impact of liquor--that it impairs judgment and lessens inhibitions, those kinds of things," Coler says. "You use the same kind of testimony that you use in drunk-driving cases."
For now, at least, K.R. is staying out of the limelight. She has moved out of Minnesota and is letting Coler speak for her until she returns for trial. "She's struggling to get on with her life," Coler explains. "She's doing somewhat better now. But the issuing of this supreme court opinion, and her having to talk about all of this again, is taking its toll. In the end I think she's most bothered by the fact that her case was never criminally prosecuted. That haunts her."
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