Is new SafeSport guideline designed to protect or silence sex abuse victims?

A sense of irony and outrage came over U.S. national team weightlifter Jennyfer Roberts as she read the recently revised U.S. Center for SafeSport guidelines this week.

One section of the revised guidelines in particular jumped out — and infuriated — Roberts.

Under a new revision, persons, including alleged victims or their representatives or advisors, disclosing documents or recordings related to SafeSport investigations or proceedings could be sanctioned for Abuse of Process. Some of those documents covered by the guideline include transcripts or reports based on interviews victims have provided SafeSport. With the new guidelines, victims of alleged sexual abuse or their attorneys, parents or other representatives are prohibited from sharing officials documents related to their cases to tell their stories .

“I thought, ‘Wow,’” Roberts recalled. “Is SafeSport going to come after me after everything I’ve been through?”

Safe Sport determined after an 11-month investigation that Pan American champion lifter Colin Burns, a former Mission Viejo resident, committed “non-consensual sex acts” against Roberts, who was incapacitated by alcohol intoxication and sleep, in her hotel room while they represented the U.S. at a pre-Olympic test event in Rio de Janeiro in April 2016. Burns was banned on February 14, 2018 for 10 years from participating in any activity sanctioned by the USOC, USA Weightlifting or any other national governing body. He was also suspended for an additional two years for “Abuse of Process” for lying repeatedly to investigators about having sex with Roberts and about being in her hotel room on the night of the alleged rape.

Burns, however, appealed the SafeSport ruling and in July a three-member arbitration panel overturned the 10 year ban for the alleged sexual assault despite finding that Burns had lied to investigators at least three times. During the hearing Roberts was questioned about her sexual history by an arbitration panel member. The arbitration panel also reduced the Abuse of Process suspension from two years to 18 months. Burns can return to competition and coaching in August.

All of this as well as her participation with a recent six-month Southern California News Group investigation into SafeSport and the Burns case ran through Roberts’ mind as she read revised guidelines.

“I could get the same sanction as my abuser,” she said.

Former Olympic and national team members, athletes’ right advocates and attorneys who have represented hundreds of young athletes who were allegedly sexually abused  in interviews this week portrayed the new guideline as the latest attempt by embarrassed SafeSport officials to further conceal the center’s widely criticized investigative and judicial process.

At a time when the U.S. Olympic Committee created and financed SafeSport is under fire from Capitol Hill and former Olympians, athletes, their advocates and attorneys argue that the new confidentiality guidelines protect predators and sends a chilling message to alleged victims who are already skeptical of the competence and effectiveness of SafeSport.

With the revised guidelines “athletes’ rights have been diminished, their voices have been diminished within the American sports system,” said Katherine Starr, a former Olympic swimmer and founder of Safe4Athletes, a non-profit foundation that advocates for athletes and helps sports organizations adopt policies and programs to prevent misconduct toward athletes.

“This is harming to an athlete’s voice and takes away their ability to speak up and have the strength they need to fight the system.”

The revised guidelines reveal a decision making process at SafeSport still driven by public relations and image concerns instead of creating policy based on athlete safety-based research, according to critics.

“Again this shows a lack of transparency by the center,” Starr said. “It doesn’t hold the center accountable and the center needs to be held accountable. The problem with this is the center is trying to establish credibility by controlling what’s going out of the center when actually the center should be establishing credibility via how it addresses issues coming into the center.

“They’re making decisions to protect an organization that is constantly being questioned about its credibility.”

A spokesman for Hill Impact, the Washington, D.C.-based national strategic communications, government relations and public affairs crisis & reputation firm that represents SafeSport, said in an email the revision was designed to protect individuals involved in SafeSport cases.

“The Center is the first of its kind,” Dan Hill said in the email. “Updating the Code periodically is necessary to keep pace with best practices in the fields of child safety, abuse prevention and investigations; revisions also allow the Center to address and clarify issues identified in its prior work, with the purpose of keeping participants safe.

“The objective is to protect the individuals involved; there are instances when the names of claimants (victims or potential victims) reporting parties and witnesses were released without their consent, including in some instances names of minors; in addition to violating Federal law aimed to protect victims, such behavior is reckless and counter to best practices.  The Code gives the Center discretion, as it “may” sanction an individual for releasing confidential information specific to a matter, i.e. an investigation report and supporting documents. It has never been, nor will it ever be, the intent of the Center to stand in the way of individuals seeking to tell their story, or pursue other recourse.  The Center may step in when confidential information is released in a way that undermines participant safety.”

The USOC declined to comment.

SafeSport critics, however, argue the revised guidelines also provide cover for predatory coaches, athletes and officials as well as those who have enabled or covered up their abusive conduct.

“This a perpetrator’s and a perpetrator’s enabler’s dream language,” said John Manly, an attorney for Roberts and dozens of alleged victims of longtime U.S. Olympic and USA Gymnastics team physician Larry Nassar.

“It’s outrageous, it’s wrong and worst of all it puts athletes in danger and it enables their perpetrators and those who protect them to further control them,” Manly continued. “The underlying message is this is a disincentive to report and that’s exactly what it’s intended to be. SafeSport is designed to fail but they’re now so desperate because they’re getting oversight from Congress and the media. They want to make this a completely confidential proceeding which would allow them to say or do anything.”

Attorneys also question the legality of the revised guidelines.

“It is not only illegal but in my view fraudulent in the sense that SafeSport is falsely holding itself out to be an official legislative and/or enforcement branch of government,” said Robert Allard, who has also represented dozens of young athletes who were allegedly abused by their coaches or sports officials. “It does not create law.  It does not enforce law.  It does not step in the shoes of our penal system.  It’s only “power” is to determine whether rights of membership to any national governing body should be negatively affected.  Period.  The right to privacy or confidentiality only belongs to the alleged victim.  Unless the victim demands confidentiality, there simply is no basis for SafeSport to do so.  Clearly, this is all part of an ongoing attempt of the USOC, through SafeSport, to avoid public scrutiny and avoid our system of checks and balances.”

There was a consensus in the interviews that the revised guideline on disclosure was in response to Roberts’ criticism of SafeSport’s handling of the Burns case and her participation in the SCNG investigation.

“I can tell you exactly what this is in response to: it’s Jennyfer Roberts,” Manly said. “So if a judge asks you as a victim, ‘Hey were you a virgin at 31 when this happened?’ And you disclose that somebody did that they can take away your rights to compete as an athlete. This is why precisely we don’t want anything to do with SafeSport. This is going to gag victims.

“It’s ironic that the Abuse of Process (sanction) is precisely what Jennyfer’s perpetrator was (found) to do because he lied about having sex with her. It’s ironic that under this scenario she would be treated and be convicted of the same crime of the man who allegedly raped her for daring to speak up and say I don’t like this process.”

Hill said SafeSport’s “intent isn’t as assumed.”

SafeSport’s distribution of the new guidelines this week comes a month after the publication of a two-part investigation by SCNG that presented an unprecedented look behind the scenes of SafeSport’s investigative and adjudication and appeals processes. The investigation based on hundreds of pages of documents related to the Burns case, as well as on interviews with athlete safety advocates and sexual assault experts, raised serious questions about SafeSport’s policies and procedures, the arbitration process and SafeSport officials’ performance and decision making both during their investigation and arbitration.

The documents, which include previously undisclosed confidential SafeSport emails, memos, investigation reports,transcripts and notices of decision revealed that the arbitration panel, in overturning the SafeSport ruling, relied heavily on the testimony of Kim Fromme, a controversial University of Texas clinical psychology professor. SafeSport’s determination that Roberts was sexually assaulted while she was incapacitated by alcohol consumption and sleep was “seriously undercut” by Fromme’s testimony, the arbitration said in its final ruling.

Fromme, without interviewing Roberts, testified that Roberts was in an alcohol-induced black-out at the time of the alleged sexual assault and was not incapacitated by alcohol and still capable of consenting to sex. SafeSport did not call a rebuttal witness to Fromme.

The documents also revealed reveal an investigation by SafeSport that was marked by delays and often a lack of responsiveness to Roberts’ questions and concerns, adding to the uneasiness and uncertainty of a woman already dealing with the trauma of an alleged rape.

The documents showed how SafeSport told Roberts the investigation would wrap up first in April 2017 and then again in July 2017 only to see the case drag on for months more. It sometimes took SafeSport officials days, even weeks to respond to Roberts’ questions and concerns if they responded at all. Burns was allowed to continue to represent the U.S. at major international competitions like the World and Pan American championships while under investigation for sexually assaulting a Team USA teammate. Burns was also allowed to compete and coach at events at where Roberts was also competing.

The documents and interviews also disclosed how Roberts was asked a series of deeply personal questions about her sexual history prior to the alleged 2016 incident in Brazil by arbitrator Rosalyn Chapman, a former federal judge, during Burns’ appeal hearing.

Burns has insisted the sex with Burns was consensual. He and his attorney declined to comment to the SCNG.

Roberts in a lawsuit against Burns, USA Weightlifting and the USOC, filed in Orange County Superior Court last month alleges that Burns raped and sodomized her.

SafeSport, Manly said, “is embarrassed” by the revelations of the Burns’ case.

Under the heading “Confidentiality—Release/Use of Materials” SafeSport outlined the disclosure guidelines”

“The following documents and/or evidence related to the response and resolution process must remain confidential, in that they may not be disclosed outside of the proceedings, except as may be required by law and/or authorized by the Center: the Notice of Decision; the Investigation Report and any documents and/or evidence attached thereto, including interview statements of a Claimant, Respondent, or other witnesses; any audio recordings or transcripts of those recordings created as part of the investigative process; all documents and/or evidence submitted to or prepared by the arbitrator, including any hearing transcripts.”

“Violation of this provision,” the new guidelines continue “including by an advisor for an involved party, may constitute an Abuse of Process.”

The guidelines also states “While the physical documentation must remain confidential, the relevant NGB or its affiliates may disclose the outcome of the matter, including the Summary of Decision, to those parties or organizations with a need to know so that the outcome can be properly effectuated and/or understood.

“Additionally, subject to the Abuse of Process provision (including the prohibition on identifying a Claimant), the Center does not impose any restrictions on a Claimant’s or Respondent’s ability to discuss the incident, their participation in the Center’s process, or the outcome of that process. If a Claimant or Respondent intentionally misrepresents the process, the underlying facts, or the outcome of a matter, the Center reserves the right to publicly correct the record.”

Roberts said by prohibiting alleged victims to use officials documents to support accounts of their abuse and concerns about their cases and the SafeSport process, the center has taken ownership of their stories away from the victims.

“Now suddenly it’s their story?” Roberts said. “And now I’m not allowed to show what happened to me or how my case was handled, everything I’ve been through? Now they want also want to own my story? It just feels like they’re trying to silence you once you report (to SafeSport).”