Expected Legal Outcomes in Robert Kraft Prostitution Case, With Details of Video Evidence Now Public

Robert Kraft was formally charged with solicitation of prostitution on Monday, and sordid details from the video evidence were made public. Here's what will happen next, now that either he or his lawyer will have to appear in court.

Jorge Lemus/NurPhoto via Getty

In a press conference on Monday, Palm Beach County State Attorney Dave Aronberg revealed new information about the solicitation of prostitution charges filed against New England Patriots owner Robert Kraft.

Aronberg confirmed that the 77-year-old billionaire has been charged with two counts of first-degree misdemeanor solicitation in violation of Florida Statute 796.07. This statute is the relevant Florida law for solicitation of prostitution. It makes it illegal to solicit, or induce, another person for sexual activities. Defendants convicted of violating 796.07 face up to one year in jail. They must also perform 100 hours of community service, pay a $5,000 fine and complete an educational program about the negative effects of prostitution and human trafficking.

Kraft has been issued a summons to appear, or have his attorney appear on his behalf, in court at 8:30 a.m. on Wednesday, April 24. The hearing will be Kraft’s first appearance in court. A summons is similar to an arrest but different in that instead of an arrested person being taken into custody, a summoned person is simply notified in writing to appear in court at a later date.

The summons was mailed to Kraft’s residence in Palm Springs. Law enforcement deemed Kraft in-state, despite the fact that Kraft lives most of the year in Brookline, Mass. According to Aronberg, the summons has been received by Kraft’s attorney and it expresses the nature of the offenses. The summons also informs Kraft of how he and his attorney can respond.

According to ESPN’s Michele Steele and others, Kraft has hired Florida attorney Jack Goldberger to represent him. Goldberger is a prominent defense attorney who represented hedge fund manager Jeffrey Epstein against charges of sexual abuse and sex trafficking. Epstein and his attorneys negotiated a plea deal that has been widely-criticized as too lenient and inconsistent with the law.

It is not yet clear if Kraft will appear in court on April 24 or if he will delegate that responsibility to his attorney. Given that Kraft wants to minimize the degree to which this troubling situation tarnishes his reputation and legacy, it seems likely that Kraft will decline to appear. He would thus avoid cameras at the courthouse and preempt photographs of him as a criminal defendant. However, the judge might be more impressed by Kraft if he appears in person, a point that could prove relevant should the judge determine a sentence for Kraft. Even if Kraft’s attorney negotiates a plea deal with prosecutors, the judge would have discretion in sentencing.

The case against Kraft

The fact that Kraft has been criminally charged means that the Jupiter Police Department has “probable cause”—a reasonable belief—that Kraft solicited, induced, enticed or procured another person to commit prostitution. Probable cause is required by the Fourth Amendment to the U.S. Constitution.

An affidavit, which is a sworn document that contains statements made under penalty of perjury, explains why law enforcement believes there is probable cause that Kraft committed crimes. It details the specifics of Kraft’s alleged solicitation and outlines some of the evidence that justifies the basis for the charge.

Law enforcement officers claim that Kraft twice solicited another person for sex. He allegedly  did so on Jan. 19 and Jan. 20 at the Orchids of Asia Day Spa in Jupiter.

According to a narrative of the Sunday, Jan. 20 events signed by Detective Andrew Sharp, Kraft wore a dark long-sleeve shirt, blue baseball cap and blue shorts when he walked into the spa at 10:59 am. Kraft allegedly entered through a front door and paid cash to a woman who worked at the front desk. The narrative claims that two police surveillance cameras captured Kraft’s activities while in the spa. It’s clear from the narrative’s description that the cameras were part of a sting operation to videotape men who solicited the spa’s worker for sex.

Upon entering a spa room, Kraft allegedly hugged a woman. He then took off all of his clothing. At that point, the narrative insists, Kraft “laid face up on the massage table” and was hugged again by the woman. She then “manipulated Kraft’s penis and testicles and then put her head down by his penis” for a period of several minutes. The woman then used a towel to wipe Kraft in the area of his genitals. Thereafter she helped Kraft dress and hugged him once again. Kraft then paid her a $100 bill, and another bill, and left the room at 11:13 am. Kraft then walked to the parking lot and entered the passenger side of a blue Bentley waiting for him.

This narrative also asserts that Kraft had entered the spa a day earlier and “was positively identified by a Massachusetts driver’s license.” A separate narrative by Detective Sharp, dated Saturday Jan. 19, describes Kraft as entering the spa that day at 4:45 pm and leaving it at 5:25 pm. This narrative describes a similar experience as discussed above. Some differences include Kraft being observed while using a cell phone in the waiting area. Also, two women allegedly massaged him that Saturday. One of those women allegedly placed her hands on Kraft’s penis. After Kraft left the spa, he entered the passenger side of the Bentley. Shortly after the Bentley left the parking lot of the strip mall, a police officer pulled over the car for a traffic stop. Obviously, since Kraft allegedly returned to the spa the next day, neither he nor his driver realized that the purpose of the stop was to obtain a copy of his Massachusetts driver’s license and confirm his identity.

The timing of the alleged incident on Jan. 20 is noteworthy, given that Kraft appeared in Kanas City that evening when the Patriots defeated the Kansas City Chiefs in the AFC Championship Game. The AFC Championship began at 5:45 pm Central (6:45 pm Eastern). A flight from Miami to Kansas City normally takes a little under three hours, which means Kraft could have visited the spa and still made the game with some time to spare. Kraft also reportedly owns his own plane, which could have expedited his travels.

The videos

The videos supposedly of Kraft in the spa are (as detailed above) described in the two police narratives. However, they have not been shown publicly. These videos are not obtainable through public record requests, given that they are connected to an ongoing criminal matter.

That’s not to say these videos won’t “appear” online at some point. There are likely many people who have, or will have, access to the videos or their physical and digital copies. As we’ve seen before, all it takes is for one person to illegally sell a controversial video to a tabloid publication in order for the world to see it. Given the videos’ newsworthiness, they could command a considerable price, perhaps six- or seven-figures.

Kraft and his legal team can take steps to reduce the chances of the videos becoming public. Assuming Kraft acknowledges that he is in the videos, Kraft could file a motion to seal them on grounds that their disclosure would cause him substantial embarrassment and mental distress. He could also insist that his privacy interests with respect to the videos outweigh the curiosity and voyeuristic interests of the public. Further, Kraft could maintain that to the extent the videos are made public, they should be in edited form so as to prevent display of private body parts and any sexual acts. It’s possible that media companies could challenge a seal on grounds that it might prove inconsistent with the First Amendment and its protection of news reporting.

Kraft’s next steps

While the possibility of the videos eventually going online is likely deeply concerning to Kraft, he is at least poised to avoid appearing in court and avoid being booked at a police station or jail. Aronberg made clear that under Florida law, Kraft’s attorney can appear in lieu of Kraft for the first appearance on April 24. During this first appearance, the judge will simply tell Kraft or his attorney what they already know: Kraft has been charged with two misdemeanor offenses. Neither Kraft nor his attorney will be required to make any statements about the charges at that time. As discussed above, whether Kraft chooses to appear in person or have his attorney appear on his behalf each offers advantages and disadvantages.

Aronberg also noted that it is up to the relevant police department, in this case the Jupiter Police Department, to require a booking of a person who is accused of a misdemeanor. Booking includes fingerprinting and a photograph or mug shot. Kraft would, of course, prefer not to have a mug shot—especially since Palm Beach County makes mug shots readily available online.

Kraft is also poised to bypass what would likely be a second appearance before the judge. Normally an arraignment follows the first appearance. During the arraignment, the defendant enters a plea, which is usually “not guilty.” However, under the Florida Rules of Criminal Procedure, Kraft can waive the arraignment altogether. Kraft “may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived.” A waiver would mean that Kraft formally acknowledges he has been charged. He would also be entering a plea in writing.

There had been reporting that Kraft and the 24 other men charged with solicitation would face second-degree misdemeanor charges, which are less blameworthy than first-degree misdemeanor charges. If that had been the case, Kraft would face up to 60 days in jail. However, Aronberg explained that, given the seriousness of human trafficking, the men would face first-degree misdemeanors.

To be clear, none of the men are accused of partaking in human trafficking or having any awareness of it. They are accused of solicitation. If these men were accused of conduct related to human trafficking, they would be facing additional, and far more serious, charges.

If Kraft elects to wage a defense, he would, as I explain in a separate story, most likely offer several arguments. They include claiming that: he has been falsely identified and was not at the spa; he was at the spa but did not receive sexual services; the incriminating evidence is inadmissible; or, he was a victim of entrapment. Unfortunately for Kraft, if the evidence is as persuasive on video as the written description suggests, he would have a very difficult time defeating the charges.

Kraft also realizes that if his attorney doesn’t negotiate a plea deal, and if he is later convicted, the judge could sentence him to up to a year in jail. The maximum sentence should not be confused with a probable sentence. Given Kraft’s lack of criminal record and advanced age, it’s possible he would not serve any jail time. But the risk of any jail time is a frightening one.

The most likely outcome: Kraft’s attorney negotiates a plea deal with prosecutors. To that point, Kraft’s legal issues might prove resolvable through Florida’s pretrial misdemeanor diversion program. The program is intended for first-time, non-violent offenders and the judge will determine whether Kraft is eligible. If Kraft is deemed eligible and if he elects to participate in the program, he must accept responsibility for his acts. He would also make restitution, such as through community service or paying a fine. Upon completion of the program, the charges against Kraft would be dismissed.

A pretrial diversion program would allow Kraft to remove his case from the criminal process, avoid the possibility of a conviction and resolve the matter by paying a fine and perhaps performing community service. However, he would need to acknowledge that he solicited another person for sex. NFL commissioner Roger Goodell could—and almost certainly would—punish Kraft for admitting to a criminal act, even if the criminal record is later dismissed through diversion. On Monday, the NFL made clear that Kraft is subject to the league’s personal conduct policy. As I discuss in a separate story, Kraft could face a suspension and/or fine by the NFL.

The MMQB will keep you updated on Kraft’s situation.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

• Question or comment? Email us at talkback@themmqb.com.