Prosecutors reached a plea deal with Brian H. Downing of Smith Station, Ala., on the morning he was scheduled to be tried on charges that included sexual battery, which is punishable by up to 10 years in prison. Prosecutors agreed to drop the battery charge.
Downing is scheduled to be formally sentenced on Nov. 29, but Orleans Parish Criminal District Judge Karen Herman indicated she will sentence Downing to two years in prison and recommend his participation in a boot camp program run by prison officials. Downing will not be required to register as a sex offender.
A video that went viral on the Internet appeared to show someone in a University of Alabama jacket exposing his genitals and performing a simulated sex act on the unconscious man at the restaurant after the Crimson Tide beat LSU for the BCS football championship on Jan. 9.
The LSU fan has sued Downing, asking damages for “mental anguish, humiliation, embarrassment, anxiety and depression ... damage to reputation” and lost tuition payments “for having to withdraw from school.”
Christopher Bowman, spokesman for District Attorney Leon Cannizzaro, said prosecutors consulted with the victim before agreeing on the plea deal. He described it as the “most just outcome and also the most certain outcome.” He rejected the notion that Downing’s actions were merely a drunken prank.
“When you put your genitals on someone’s body, someone who is passed out, that’s not a prank,” he said. “I don’t think people would be asking that question if the defendant had done it to a passed-out woman.”
Michael Kennedy, one of Downing’s attorneys, said his client decided to accept the deal in large part because he has a 1-year-old son and didn’t want to have to register as a sex offender.
“Is it worth the risk of never seeing a Little League game? Of never being able to drop your child off at school? He decided no,” Kennedy said.
Although Downing will be sentenced to two years, he may be eligible to serve less than half of that. Kennedy estimated his client will serve a minimum of nine months.
Downing didn’t answer a reporter’s questions after the brief hearing.
New Orleans police at first said they could only investigate the case if the fan filed a complaint, then sent out a wanted poster with screenshots from the video. Downing, a cousin of Russell County, Ala., Sheriff Heath Taylor, turned himself in.
Taylor said in January that after learning from other family members that Downing had been identified as the Alabama fan, he called Downing’s father and told him to bring him to the sheriff’s office in Phenix City, Ala. He said he then called New Orleans police to ask whether they wanted him to jail and extradite Downing or send him to New Orleans to surrender.