NEW YORK ―Video evidenceshowsSean "Diddy" Combskicking and dragging his ex-girlfriend in a hotel hallway as she was trying to leave. But some defense lawyers still believe there's a way Combs could win hissex-trafficking trial: Admit you committed domestic violence, but remind jurors you're not charged with that crime. "The defense should be they've overcharged the guy. They're charging him with sex trafficking, when they should have charged him with domestic violence," lawyer and trial consultant Robert Hirschhorn tells USA TODAY ahead of the trial. Sure enough, Combs' defense lawyer Teny Geragossaid in her opening statementthat her team didn't plan to deny Combs' personal responsibility for domestic violence, but did plan to vigorously fight the trafficking charges. "Domestic violence is not sex trafficking," Geragos said. "I want to say it again. Domestic violence is not sex trafficking." Since the onset of the trial on May 5, Combs' defense team has tried to establish that people who participated in "freak offs" – in which Combs would, according to testimony, direct and sometimes film sex performances between women and male sex workers – did so willingly. That includes presenting texts to suggestCasandra "Cassie" Ventura Fine, the ex-girlfriend Combs assaulted in the hotel video, consented to "freak offs." "I don't want to freak off for our last time. I want it to be the first time for the rest of our lives," Ventura Finetexted Combs in 2012, according to a message his defense has shown to jurors. (The prosecution has shown jurors a different part of the same exchange in which Ventura Fine texted, "I don't wanna do one last time. I don't want to at all.") The strategy may be the best way for Combs to deal with video evidence and testimony from numerous witnesses on domestic violence. But the approach is also akin to threading a needle, according to some litigators who have prosecuted sex-trafficking cases. That's because sex trafficking involves compelling someone to participate in a commercial sex act through force, fraud, or coercion. If Combs admits he used physical violence in his relationship with Ventura Fine, some jurors could believe he's admitting he forced her into the "freak offs." "Domestic violence goes to the heart of that question," says Moira Penza, a litigator who in 2019 successfully prosecuted the so-calledNXIVM "sex cult"leaderKeith Ranierefor sex trafficking and racketeering – two charges Combs now faces. Combs has pleaded not guilty to all charges in the federal criminal trial. "If somebody is being beaten before or after sexual encounters, and knows that that is just a consistent part of their relationship, that really extinguishes any concept of consent and goes right to this element of, 'Was the commercial sex compelled through force, fraud or coercion?'" Penza tells USA TODAY. Combs' defense team didn't respond to a request for comment on whether it believes it is walking a tightrope in conceding domestic violence while denying he trafficked anyone. But it has tried to demonstrate that alleged victims had agency. "They're giving the jury an option that falls below sex trafficking, but still allows them to condemn Mr. Combs for his use of force that they know the government has evidence of," Hugh Sandler, a lawyer who has litigated human trafficking and racketeering, tells USA TODAY. It's possible the defense team didn't think it had any choice but to admit Combs abused Ventura Fine. In about a month, the jury has seenmyriad photos of injuriesVentura Fine says she suffered at Combs' hands and heard numerous witnesses testify that they personally witnessed Combs physically attack her. Combs' former stylistDeonte Nash, for instance, testified that Combs once threw Ventura Fine's head against a bed frame, causing a gash above her eye. Ventura Fine's former best friend,Kerry Morgan, said she saw Combs drag Ventura Fine down a 50-yard hallway before pushing her down, where she hit her head on a brick. Daniel Phillip, a male stripper who said he was paid for sex acts involving Combs and Ventura Fine, testified that he witnessed Combsthrow a liquor bottle in Ventura Fine's directionand drag her by her hair into a bedroom after she asked him to "hold on one second" when he called for her. The defense could still win an acquittal or a hung jury on the sex trafficking charges by distinguishing between domestic violence and sex trafficking, according to Mitchell Epner, a former New Jersey federal prosecutor who was the lead attorney in sex-trafficking and involuntary-servitude cases. "But it is really putting the jurors to the test of their oath to ask them to split hairs in the way that the defense is asking them to," Epner says. Litigators will tell you that trust with jurors can make or break a trial. The desire to win that trust may have driven the defense team's decision to admit guilt – just not to the charges. His lawyers knew going into the trial that jurors would hear graphic testimony of violence and "freak offs" that Ventura Fine says were only for Combs' pleasure. At one "freak off," Ventura Fine described, Combs directed an escort to urinate on her to the point that she was choking. "I thought that it was obvious that I didn't want to do it," she testified. "The most important thing you have as a trial lawyer is your credibility," Penza says. "I thought that the defense did as strong a job as you can given the facts that they have stacked against them." But even if the defense strategy was logical, that doesn't mean it's not risky. The prosecution already called one expert witness to the stand, clinical psychologistDawn Hughes, who described domestic violence as behavior that functions to exert control over a victim. "When we are hit, harmed, beat up … we feel scared," Hughes said. In eliciting that testimony, prosecutors may have wanted to link Combs' violent behavior with the ultimate charge: that he used that violence to compel Ventura Fine and others to participate in "freak offs." Having admitted to one part of that prosecution narrative, the defense is now tasked with severing its link to the wider charges. Can it thread that needle? Epner thinks it's possible, but also an uphill battle. "It may be asking too much of jurors to ask them to conclude that yes, Sean Combs is a drug-addicted, violent, sexual aggressor, but he didn't commit this offense because here there was consent," Epner says. Aysha Bagchi covers the Department of Justice for USA TODAY. She is an attorney, Harvard Law graduate, and Rhodes Scholar.You can follow her on X and Bluesky at @AyshaBagchi. If you are a survivor of sexual assault,RAINNoffers support through the National Sexual Assault Hotline at 800.656.HOPE (4673) andHotline.RAINN.organd en EspañolRAINN.org/es. If you or someone you know is a victim of domestic violence, call the National Domestic Violence Hotline at 1-800-799-7233 or text "START" to 88788. This article originally appeared on USA TODAY:Diddy trial defense is tricky. Will jury see sex trafficking?
