LochteGate
By Andy Brockman
Background
In the aftermath of the 2016 Olympic Games in Rio, there are many things to reflect on. Usian Bolt’s continued domination, Michael Phelps’ goodbye to the games, and Simone Biles’ memorable performance. Unfortunately, the Games are not always full of good memories. During a year where the world feared that Brazil was not ready the Olympics due to a high poverty and crime rate, as well as a growing Zika outbreak, the real black eye on the Olympics came from athletes coming into the county. This is perfectly exemplified by the antics of Ryan Lochte and his fellow members of the men’s swimming team.
On August 14, Fox Sports reporter Ben Way tweeted “BREAKING: @USASwimming Gold medalist Ryan Lochte has been held up at gunpoint at a party in Brazil.”[i] Within an hour, the International Olympic Committee Director of Communication was prepared to say that the story was untrue.[ii] Lochte explained even further that the robbers who were also police officers pressed a gun to his forehead and told the other swimmers to get down on the ground; Lochte alone refused to do so because of his innocence.[iii]
On August 14, the United States Olympic Committee confirmed the statements made as true.[iv] Despite this confirmation, the Brazilian Police struggled to find any evidence of these allegations, and on August 17, Lochte announced that a gun was never pressed to his head, and that the incident took place near a gas station bathroom which he actually broke down during the altercation.[v] An interesting facet of this case is that Lochte left the country, whereas his fellow teammates were not permitted to travel and had their passports seized.[vi] The next day, a video surfaced of the swimmers getting into an altercation with security guard, not police officers in which one of the swimmers raised his hands to.[vii] Brazil then indicted Lochte for making a false report to police officers; however, he had already left the country and was safely back in the United States.[viii]
Brazil Law
In the United States, Lochte would obviously be in serious trouble; however, the Olympic veteran was in Brazil when this incident took place. Now Deborah Srour, a Brazilian lawyer with 25 years of practice, is arguing that Lochte did not technically break any laws when he fabricated the story, despite the Brazilian indictment.[ix] Article 240 of the Brazilian penal code states: “It is a crime to provoke the action of the authorities, by communicating to it the occurrence of a crime or misdemeanor that he or she knows did not happened.”[x] The penalty for this crime is from one to six months in jail or a payment of a fine.[xi] It is quite clear that Lochte would be paying a fine just as his teammate did.
As is the case with most criminal matters, Srour argues that a local attorney could get this case dismissed quickly because the police questioned Lochte after reading published reports about the incident. Srour does believe that the combination of charges being filed and his leaving the country could have haunting effects on Lochte. For example, his fellow swimmer Jimmy Feigen already paid $11,000 to secure his passport back, and a judge could easily decide that Lochte should do the same.
Srour is correct that a very liberal reading of that section of the penal code could imply that Lochte is innocent; however, under Special Part Title 11, Chapter 3, Article 342, “if a person makes a false statement or den[ies] the truth as a witness in legal proceedings or in a police investigation, the penalty is imprisonment of one to three years.”[xii] There is no potential exception to law like the earlier one. Lochte completely committed this aspect of the crime, and he could be facing serious jail time in Brazil.
Possible Foreign Relationship Mess
It would be common to think that the United States would protect their citizen, especially one with 12 Olympic medals; however, doing so could be breaking the United States-Brazilian International Extradition Treaty. This treaty explicitly bounds both the US and Brazil to the extradition of their citizens if specific crimes have occurred such as perjury.[xiii]
Lochte’s attorneys will no doubt argue that nothing in the treaty includes falsifying a police report to being an extraditable offense. Brazil is likely to argue that although not under oath, Lochte lied to Brazilian officers which constitutes perjury and should be extradited back to Brazil. The ramifications of the United States not cooperating could have huge effects on US Brazil relationships.
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[i] Ben Way “BREAKING:@USASwimming Gold medalist Ryan Lochte has been held up at gunpoint at a party in Brazil” 14 Aug. 2016.
[ii] Mark Sandritter, A Timeline of Ryan Lochte’s Claim that He and 3 USA Swimming Teammates were Robbed in Rio, SB*NATION, Aug. 19,2016 available at http://www.sbnation.com/2016/8/18/12528300/ryan-lochte-robbed-rio-brazil-swimming-details.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Id
[vii] Id.
[viii] Id.
[ix] Josh Peter, Lawyer: Ryan Lochte might not have broken laws with fabricated story, USA TODAY, Aug. 20 2016 available at http://www.usatoday.com/story/sports/olympics/rio-2016/2016/08/20/ryan-lochte-didnt-break-laws-when-he-fabricated-story/89061860/
[x] Brazilian Codigo Penal art. 240
[xi] Id.
[xii] Id.
[xiii] United States-Brazilian International Extradition Treaty, US-Brazil, Jan. 13 1961.