Brazilian law enforcement officials said on Thursday that the four American swimmers who claimed to have been robbed at gunpoint during the Rio de Janeiro Games—Ryan Lochte, Jimmy Feigen, Jack Conger, and Gunnar Bentz—had fabricated the story. We asked law professor and international law expert Dan Danielsen to explain where this drama might go from here, with a particular focus on the legal consequences facing the swimmers and the tepid relationship between American and Brazilian officials.
From a legal perspective, what sets this international incident apart from other bizarre stories like it?
This incident seems odd from a number of vantage points, but from a legal standpoint, the issues primarily turn on Brazilian criminal law. It is beyond question that the Brazilian authorities could detain the athletes temporarily in connection with a criminal investigation, as the athletes are subject to Brazilian law when on Brazilian soil. The most logical explanation for the detention would be that the athletes are key witnesses in the investigation, and once they left the country, Brazil might not be able to get jurisdiction over them again. However, based on recent reports that the athletes may have fabricated the alleged hold-up at gunpoint, things have gotten more complicated. Specifically, the key legal question now seems to be whether it’s a crime in Brazil to falsely report a crime and whether the athletes can be lawfully charged and held for that offense under Brazilian law.
Lochte, the most prominent of the four swimmers accused of fabricating the hold-up, left Brazil before a Brazilian judge ordered him to turn over his passport, which would have prohibited him from the leaving the country. Could he be forced to return?
The law governing whether Lochte could be forced to return is the law of extradition. While Lochte could have been arrested in Brazil if he were alleged to have committed a crime there, Brazil has no direct jurisdiction over Lochte now that he has left the country. Because Lochte returned to the U.S., he would be subject to involuntary return only if the U.S. agreed to arrest him and return him to Brazil pursuant to a request for extradition. Whether extradition would be granted would depend on the nature and gravity of the alleged crime in Brazil, whether the crime charged is one covered by the extradition treaty between the U.S. and Brazil, and whether a U.S. court could find that there was sufficient evidence that Lochte had committed the alleged crime in Brazil. Given the nature of the alleged offense—falsely reporting a crime—it seems very unlikely that Brazil would request or the U.S. would grant extradition of Lochte to Brazil.
The New York Times reported that “Brazilian law enforcement officials have kept American diplomatic and law enforcement officials at arm’s length as they have moved forward with their investigation.” What responsibility do Brazilian authorities have to keep American officials informed as this incident continues to unfold?
Since the athletes are not officers of the U.S. and entitled to diplomatic immunity, there would be no obligation for the Brazilian authorities to keep American officials informed of their ongoing investigation of a crime allegedly committed in Brazil by U.S. citizens. If the athletes are arrested, the Vienna Convention on Consular Relations requires the Brazilian police to ask the athletes if they want the U.S. consulate notified of their arrest. Given the high-profile nature of the situation and the implications for diplomatic relations between Brazil and the U.S., it would be very surprising if Brazil did not allow U.S. consular officials to see the athletes and to offer assistance. However, any criminal process that ensues would be governed by Brazilian criminal law and procedure.