Case Story: Swim Coach's Sexual Assault Charges Dismissed the Day Before Trial

“The road to hell is paved with good intentions.”

We’ve all heard this proverb, but not all of us have really thought about what it means.

So what does it mean?

Well, many things, but at its core, it is about the difference between what someone intends to do and the outcome of their actions. In other words, the consequences of one’s actions can be awful and tragic despite the good intentions that lead one to do them.

That’s what this case is about.

Our client was an elite local swim coach. And actually he was an elite swimmer himself—having almost made the Olympics twice. He coached specialized swim lessons, focused mainly on high-achieving athletes.

He did this successfully for many years.

Then, out of the blue, one of his students accused him of sexual assault, which she alleged happened during a one-on-one training session. With little investigation, our client was quickly arrested and charged with an AA felony—the most serious charge in North Dakota.

After he bailed out of jail, he visited our office and told us what happened. We knew right away that while he had perhaps exhibited bad judgment, he did nothing illegal. So we got to work fighting both the legal and factual underpinnings of the girl’s allegation.

Our hard work paid off when we got all charges dismissed the day before trial.

Here’s how we did it.

The Allegation

As noted above, our client was a well-known swimmer and coach in the Fargo-Moorhead area. In fact, he was one of the most decorated swim athletes in North Dakota history. After a storied career that included swimming at the collegiate and Olympic levels, he moved back to Fargo to share his gift with the next generation of swim athletes.

And for years, that’s exactly what he did.

While he tried his hand at team coaching, his focus and intensity didn’t translate well to casual athletes and parents. In short, our client expected a lot out of his athletes and struggled accepting anything less than that.

This led to our client leaving team coaching and focusing instead on individual, one-on-one training, with an emphasis on high-achieving athletes. He coached youth and adult athletes alike, both male and female.

There was no specific “archetype” who sought out his coaching, other than people who were serious about swimming and serious about taking his advice.

In the words of students interviewed as part of our investigation, he was “tough, but fair.”

It was against this backdrop that these allegations came to light.

And they came to light one evening after what seemed to our client to be a normal, run-of-the-mill session with a 13-year-old female student. The girl was a longtime student of our client’s, working with him for a number of years.

The practice format and location were the same as always, except for one thing: at both the beginning of the session and halfway through, the girl complained to our client about soreness in her upper legs and hips.

A contributing factor to the soreness? An intense swim camp the student had attended the weekend before.

The location of the soreness concerned our client greatly, as this was the same area that had injured him twice previously, the last time being the reason for his failure to qualify for the Olympics. 

Knowing the potential detrimental consequences of an untreated injury in this region of the body, our client made a decision the law tried to later make him regret: he performed specialized physical therapy on the area the girl indicated was injured—her upper thigh / hip region.

He did this for three reasons: (1) he knew the injury needed immediate treatment based on his own experience with it; (2) he had specialized training that allowed him to treat the injury with a type of physical therapy called PNF; and (3) he knew there were cameras in the pool capturing the therapy he was performing.

After the therapy was complete, the girl exhibited immediate relief, as she instantly walked better and with less pain than before.

The lesson ended, the girl’s parents picked her up, and our client thought nothing of what had just occurred.

But then the whole world changed.

The lesson ended at about 7 pm. By 5 am the next morning, our client was being questioned by law enforcement about the swim lesson. And the focus was clear—the police thought he had sexually assaulted his student during her lesson. 

The problem for him was how to explain what had happened without sounding dishonest. 

Admit to touching his student, but try to explain it was for therapeutic reasons?  

Yeah right. 

So instead, he said little, denied the investigation’s allegations, and got off the phone.

He then immediately went to the facility where the lesson occurred, got the camera recording of the swim lesson, and made sure it would be turned it over to the police.

Rarely do people with something to hide go get the supposed incriminating evidence and give it to the authorities.

But that’s exactly what our client did, because he knew he had nothing to hide.

This didn’t stop the police from deciding what they had already decided before they even made the phone call to our client: he had sexually assaulted this girl during the swim lesson.

So the police arrested our client, and after unconstitutionally holding him at the local jail for multiple days without charge, they finally charged him with the AA felony of sexual assault of a minor—the highest felony-level offense in North Dakota. 

With the help of friends and family, our client got in contact with us and retained our law firm. We met with him, learned the story, and fashioned a two-pronged plan of attack: (1) challenge the legality of the charge against him; and (2) work to disprove the factual allegations being made by the student.

The Legal Challenge

The state charged our client with sexually assaulting his swim student, which our client denied. But the state also said that the sexual assault happened by our client penetrating the student’s private area.

This was problematic because even in the light most favorable to the state, we did not think the evidence established penetration.

Put another way, even if we were to assume our client did exactly what the student alleged, the facts of the case established only that he touched the student’s private area, not that he penetrated the student’s private area.

And distinction mattered.

Touching meant the charge would have to be dropped to an A felony--still serious, but far less serious than a AA felony.

By contrast, penetrating meant the AA felony, which carried the possibility of life in prison.

So we moved to dismiss the AA charge. We argued that at most our client touched his student inappropriately, but that he did not penetrate her.

And the challenge came down to what constitutes “penetration.”

To us, penetration is obvious. 

Penetration is the act of pushing into something, or through a barrier. For example, your hand can penetrate a Kleenex box by pushing through the top plastic opening. But your hand cannot penetrate a table, unless somehow you used enough force to break through or splinter the wood.

The state argued that penetration was not so concrete, or so obvious, and that instead North Dakota law only required some sort of touching to constitute penetration.

So using our example, you could both penetrate a Kleenex box and the table, because in both instances the hand is touching the surface of the item.

Applying this logic here, the issue was whether touching the top of the student’s private area, but not the inside of it, constituted penetration (again assuming for the sake of argument our client did it, which again he vehemently denied). 

In a decision we disagreed with, the judge ruled for the state, taking an expansive view of the word penetration and further muddying the already unclear caselaw on the topic.

Understanding that this work is a marathon, and not a sprint, we simply pivoted from the ruling, took what good we could use from it, and refocused our efforts onto preparing for trial.

The Trial Prep

The main benefit from making the legal challenge is that we got the state to admit that the student had been unclear in her statements to police about exactly where our client had supposedly touched her during the swimming lesson.

In short, she never said our client actually penetrated her. She used language suggesting that he touched near her private area, and “just on the edge” of it, but at no point did she ever say he went inside her private area.

Realizing this would be an issue at trial, the state’s investigator reinterviewed the student and got her to change her statement to more clearly state that she now believed that our client had actually penetrated her private area.

To us, this was a tell. It showed that the student 1) didn’t really know where she had been touched, and 2) was willing to change her story after the fact. Both made us think she would have a difficult time on the witness stand in terms of withstanding scrutiny on cross-examination.

Next, we began working to establish that the therapy our client conducted on the student was just that—therapy. 

Maybe it looked odd when done by an adult on an adolescent, and maybe it seemed weird with our client’s hands so close to the student’s private area. But our client maintained from the very beginning that what he did was 100% therapy. 

So we took him at his word and set off to find corroboration.

Given that PNF is a relatively niche therapeutic intervention, it took us some time to find someone, but we eventually landed on a physical therapist from St. Paul, Minnesota.

A mother of children around the same age as the student making the allegations, the PT expert reviewed the video of the swimming lesson—which included the PNF—and also the student’s interview with the police.

Her conclusion was immediate: our client had performed textbook PNF.

Nothing sexual. No wandering hands. Apart from one inconsequential flaw, no concerning technique.

Just prototypical PNF therapy that objectively helped the student’s hip flexor injury.

While we knew this in our hearts all along, hearing it from a disinterested, objective party who had no dog in the fight, did not know our client, and even had a daughter of her own the same age as the alleged victim was powerful, to say the least.

We knew this was going to flip the trajectory of the case. The state’s whole case was that this was sexual deviancy disguised as therapy. Our whole defense was that it was therapy that simply looks odd to the untrained eye.

We now had someone on our side saying our defense was correct.

So we took our findings to the prosecutor. 

The Result

The prosecutor’s response was a mixed bag.

While he was receptive to how our expert changed the situation, he was not receptive to the extent we hoped. We truly thought the case should have been dismissed because of the expert’s report.

But the prosecutor didn’t see it that way.

He still thought the video would be enough to convince a jury that our client was doing something wrong during the swim lesson.

As trial neared, however, it became clear that the state’s case was weakening. The student and her family began expressing concerns about having to testify, the state did not find its own expert to challenge ours, and we continued to find more and more witnesses willing to provide favorable testimony for our client.

Having already unsuccessfully tried to convince the prosecutor to drop the case before trial, we took the approach we always do in that situation: we shut up and prepared for trial.

As the old saying goes, to have peace, you must prepare for war.

So that’s exactly what we did.

We met with our witnesses and prepared them to testify.

We wrote questions for our direct and cross examinations.

We practiced our jury selection and opening statement.

In short, we did everything you do when you truly believe you are on the precipice of trial.

Then, one day before jury selection began, the state filed a motion dismissing the case against our client.

We had a hearing before the judge, and after some back and forth, the motion was granted.

Just like that, our client’s 12-month-long nightmare was over. He was a free man. No charges. No possible life in prison. No registration as a sex offender.

Just freedom.

The Takeaway

“Things are not always what they seem.”

Another phrase we all know that applies here.

Our client performed a therapy on his student that at first blush didn’t look good.

The student, her parents, and the state immediately jumped to the worst possible conclusion and assumed our client must have committed sexual assault.

But we kept our powder dry.

And we listened our client, listened to the holes in the story, and began to pull at threads. Both legally and factually. It took significant time and resources. But it got the best possible outcome for our client: a complete and total dismissal.

Sadly, his name in the swimming community may be tarnished forever. But he has his liberty.

And in this work, that’s about as good as it gets.