With all the talk going on about the new reportedly “tell all” book penned by Katina Powell and IBJ Book Publishing, LLC there are a number of legal issues that have popped up and require some examination.
The airwaves were abuzz on Monday morning with questions about what does it all mean, what can investigators do to learn more, isn’t this type of thing criminal, and are there any repercussions if this entire story turns out to be false? The answers in no particular order are yes, no, maybe and it depends.
First let’s take a look at the allegations. By stating that Andre McGee paid her for escort services during his time at U of L as a Graduate Assistant, and later as Director of Basketball Operations, Ms. Powell has levied an allegation that, if true, has far reaching implications. These implications include NCAA sanctions for the University and McGee, but perhaps even more damning implications for Powell.
I will disregard the NCAA element of this story for a couple of reasons. First, there are a lot of dots to be connected still in this story, and any discussion of NCAA trouble is premature. Second, I am a lawyer, and thus I am infinitely more qualified to tell you what the law says about these issues than I am to guess about what the NCAA may or may not do.
CRIMINAL LAW ASPECT
If the story is true, and can be proven, the legal ramifications for Powell are far greater than they are for McGee. The charge of promoting prostitution is the hat that would fit in this case, and it is a hat that could only be worn by Powell. Promoting Prostitution is defined as follows:
529.040 Promoting prostitution.
(1) A person is guilty of promoting prostitution when he knowingly advances or profits from prostitution.
(2) Promoting prostitution is a Class A misdemeanor unless the person managed, supervised, controlled, or owned, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two (2) or more prostitutes, in which case it is a Class D felony.
The key element to keep in mind in this case is that, according to Powell, she took three or more women to engage in prostitution during the time in question. As you can see from paragraph 2, if Powell engaged two (2) or more prostitutes in this type of activity, the charge is a Class D Felony. More importantly, in Kentucky, felonies have no statute of limitations. Ms. Powell could face 1-5 years in prison for committing the acts she described.
Contrast that with McGee, or anyone else involved in prostitution, and you have the following:
(1) Except as provided in KRS 529.120, a person is guilty of prostitution when he engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
(2) Prostitution is a Class B misdemeanor.
In Kentucky, Prostitution is a Class B misdemeanor, which does have a statute of limitations. That statute is 1 year and therefore, no charges can be filed for actions that are greater than 1 year old. Therefore, it would appear that McGee, or anyone else involved in a prostitution charge may be in the clear, criminally speaking.
CIVIL LAW ASPECT
In case the allegations levied by Ms. Powell are not true, and it can be proven that they are not true, there is a cause of action civilly that can be taken by McGee, or anyone else who was named. The legal action is based on Defamation of Character, and falls under the more appropriate title of Libel, because the defamatory words were written and published. In this case, Powell stands to be sued for damages if it can be proven that her “story” is not true. What’s more important is that IBJ Book Publishing, LLC and the co-author, could also be named in any suit for damages as well.
One area to consider when evaluating the prospective damages in a case like this is the loss of economic opportunity for those who were defamed. It wouldn’t take much conjecture to prove McGee’s reputation as a college basketball coach has been forever tarnished by this allegation. Here’s the catch though, because the allegations are so sordid and salacious, damages would likely be presumed. Therefore, no real damage element has to be proven. The most recent high profile case involving libel, with large damages, involved Jesse Ventura and Chris Kyle, the American Sniper. While these cases are difficult to prove, it can be done, and it is a fight worth fighting. ( A reported $1.8 million dollar award for Ventura)Advantage McGee.
What Can Investigators do to Learn More?
As has been repeatedly discussed, the NCAA does not have subpoena power. Chuck Smrt does not have subpoena power. While Rick Pitino and Tom Jurich are likely intimidating fellows, they too have no power to compel the type of evidence needed in a case like this. The unfortunate truth is that it will likely take either a civil action, or a criminal proceeding to gain the utility of subpoena power. (You will recall that improper use of subpoena power is what got the NCAA into trouble with the University of Miami investigation.) Armed with this subpoena power, attorneys for the litigants could compel production phone records, bank records, and other pertinent documents. Depositions could be ordered and witnesses compelled to testify under oath as to what they know about the case.
In the case of criminal prosecution, witnesses who may have been involved may seek to avoid testifying under the grounds that their testimony may incriminate them. (Pleading the 5th) However, if the prosecutors granted immunity from prosecution, no such privilege would remain and they could be forced to tell their story.
The ball has just begun to roll in this case, and there are a lot more questions than answers at this point. It remains to be seen what legal action, if any, will be taken in this matter, and this “analysis” is certainly not exhaustive by any means. What is known for sure is that the main motivation for this case/book/story is money. (Don’t trust me on that, Powell is on record as saying it.) By her own admission, Powell has “turned out” her daughters, and is now seeking to profit once more by telling her story, or a story, or something… It remains to be seen what is true, what is false and what can be proven; and after all, it is the proving part that will be the hardest.