In NASCAR’s court, Busch is guilty until proven innocent (Update)

UPDATE What is "Preponderance of Evidence?" NY Attorney Explains


Kurt Busch - you are guilty until you prove to us you are innocent
Kurt Busch – guilty until proven innocent

Domestic violence. Abuse. A man assaulting a woman. These are all hot-button issues in sports today, in no small part because they are hot-button issues in society. Friday's announcement that Kurt Busch has been suspended indefinitely show that auto racing is not immune to the controversy. But in their lightning-fast reaction to a Delaware family court's ruling, NASCAR did a disservice both to one of its drivers and to justice as a whole.

Make no mistake in thinking that I endorse the abuse of women. Should he be convicted of the crime he deserves every ounce of the weight NASCAR will put on him. I have had the misfortune of having those close to me victimized by this kind of scum. The penalties, handed out too lightly and too infrequently- often end up punishing the victims far more than abusers. It's a horrible process and one only the lowest form of person stoops too.

And nor do I endorse some of Kurt Busch's past personal behavior. He lost a top tier ride at Penske Racing over a very public meltdown verbally assaulting Dr. Jerry Punch. It wasn't the first time either. The man has a public track record of being unable to control his temper- a record that makes former girlfriend Patricia Driscoll's accusations far more believable.

Still, the indefinite suspension handed down by NASCAR (and affirmed by the appeals process) is wrong. Less than an hour after the Delaware court granted Ms. Driscoll's request for a no-contact order NASCAR announced the suspension. The speed at which the announcement was made indicated that this decision had clearly been made long ago. Kurt himself admitted as much by stating that he knew what his punishment was going to be. He sounded like a man already found guilty and simply awaiting sentencing in the days leading up to Daytona. "The fact that no announcement has come out, each day that goes by continues to be good news," he said prior to the suspension.

Many media members have drawn parallels between NASCAR and the NFL's handling of the Ray Rice investigation. NASCAR acted less than an hour after the court's ruling with an indefinite suspension that will have a chilling effect on Busch's career. Meanwhile, the NFL suspended Rice a paltry two games and he remained a Baltimore Raven until video of the incident leaked online. The general consensus seems to be that NASCAR got it right, that they acted swiftly in removing Busch from the track and send a firm message to its drivers that these incidents will not be tolerated.

What seems to be ignored is that last Friday's ruling came from a single judge in a Delaware family court. His opinion carries weight because he is a judge in that court. But in the end it is only that; an opinion. Busch will not be incarcerated due to that opinion. He will face no probation or fine from the state of Delaware. He simply will not be permitted to seek out Ms. Driscoll and will be punished if he chooses to do so.

The ruling was also based on a legal standard known as preponderance of evidence. Essentially, that means that the judge believed that her story was more likely than his. If the case was a virtual coin flip, leaning a fraction toward her, the order was granted. Courts are also likely to be more lenient toward the accusers case in a no-contact hearing. The only punishment to the defendant is the prohibition of contact with the accuser. Given that this particular case involves a woman he chose to end a relationship with, that's not much of a hardship. It's likely the only reason he even contested the order was the pending punishment from NASCAR if it was approved.

Kurt Busch will one day have to appear before a criminal court. That hearing will be an entirely different matter. In that court, his freedom could be at stake and the legal environment is vastly different. He will be judged by twelve Delaware residents who will have to unanimously agree that he committed this act. The prosecution will have to present sufficient evidence to convince those twelve people that not only is it likely Busch did as Driscoll says but that they believe that he did it beyond a reasonable doubt. It's a high standard of evidence and it's supposed to be that way. If you're going to deprive someone of their life, liberty and pursuit of happiness, you need to be sure that he's guilty.

NASCAR's action on Friday flew in the face of that tenet. They are depriving him of his ability to race under their banner- virtually eliminating his ability to earn a living as an auto racer in America. He might be able to race in Tony Stewart's sprint car series. He may well have to; Penske and Ganassi will not risk NASCAR's wrath by backing him on an IndyCar ride and he's hardly in a position to go to Formula One.

Normally a driver has far more to fear from their sponsor than they do the sanctioning body with these types of mistakes. But his owner is his sponsor; Gene Haas brought Kurt aboard a year ago and put his company's name on the hood of the car. He's had his own legal troubles in the past and showed every sign of planning to stand behind Busch here. The loss of factory support from Chevrolet was a possibility if Haas dug his heels in but that would also risk losing Stewart Haas Racing to rivals Toyota or Ford- something not taken lightly.

Perhaps the most hypocritical point here comes in contrasting their banishment of Busch with the treatment given to fellow driver Travis Kvapil. Like Busch, Kvapil was accused of domestic abuse. But unlike Busch (as of now), Kvapil was actually arrested and charged with a crime. Officers responding to a 911 call found sufficient evidence that a crime was committed that Kvapil was hauled in immediately after the incident. Despite the arrest and the charges (later plea bargained down to probation), he missed no races and continues to be welcomed by NASCAR in their garage. At the time, his defenders told us that we should let the court case play out and not judge the man before the facts were all in.

Meanwhile Busch has been declared persona non grata by NASCAR and has been vilified on countless blogs and news shows. He's been torn to shreds both for the actions he's accused of and for the defense he offered in court. By accusing Driscoll of being a professional assassin (and thus not someone he would dare assault), Busch essentially said that she was too dangerous for him to dare hitting. That kind of explanation strikes me as too strange to be made up. If he were to make something up he likely would have stuck with a story that didn't leave him looking like that.

I'm just one person. I don't know what happened in that motor home and so far neither does anyone else. The two stories are very different and it's a real possibility that the truth lies somewhere in the middle. The Delaware family court judge did not have the option of considering that possibility in issuing his ruling. NASCAR did and their punishment is far worse than being told to stay away from Patricia Driscoll. It's their sport, their track, and their right to close the door to him. But to do so now, particularly with their recent handling of the Kvapil case, doesn't feel right to me. AnotherLeftTurn

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