Oklahoma Bar Journal
Safe Sport: Protecting Athletes From Sexual Abuse
By Laurie Koller
The amount of abuse coming to light in youth-serving organizations is alarming. The 156 victims who spoke during the Nasser hearings regarding abuse in gymnastics are the tip of the iceberg. The U.S. Center for SafeSport opened in March 2017. This entity is authorized to investigate complaints in many organized sports organizations.
Within 15 months of opening, the center had fielded 1,000 complaints. The vast majority (81 percent) of these were current complaints, not historical complaints. A majority (65 percent) were complaints against coaches. The figures below show SafeSport Center statistics one year after opening. Three months later, the number of complaints had nearly doubled.1
When we know that one in five girls and one in 20 boys are abused before they reach adulthood, foreseeability of childhood sexual abuse is clear. Abuse specifically within a sport is lower but is still suggested as between 2 percent and 8 percent of all athletes.2 Where there is predictable risk, then there is a duty to take action.
FORESEEABILITY OF CHILD SEXUAL ABUSE
The prevalence of these complaints has a direct effect on the legal standard imposed on youth-serving organizations. In 2017, a California court concluded that “it was reasonably foreseeable to defendants that a child participating in [U.S. Youth Soccer Association] would be sexually abused by a coach.”3
Oklahoma courts have frequently recognized the special place that children hold in our society and adults’ heightened duty to protect them. In Schovanec v. Archdiocese of Oklahoma City,4 the Oklahoma Supreme Court considered the special duties owed to children by adults. It determined that notice of a priest’s use of alcohol with children was sufficient, for summary judgment purposes, to constitute notice of later sexual abuse.
Because almost all national sports organizations have either adopted or are required to adopt policies and procedures for child protection, it is likely that the failure to have such rules will be considered a violation of the common law duty to protect children within a youth-serving organization.
THE SAFE SPORT ACT
In an effort to address sexual abuse of athletes, including children, in organized sport, Congress passed the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act (Safe Sport Act),5 effective Feb. 14, 2018. There is no doubt the act is needed.
The U.S. Center for SafeSport and the Safe Sport Act is part of the solution. The act now requires mandatory child abuse reporting for those affiliated with amateur sports and U.S. Olympic sports, including college athletics. Anyone affiliated with these organizations must report sexual abuse to law enforcement within 24 hours or they can be charged with a federal crime. In some ways, Oklahoma has been ahead of the curve. Oklahoma has been a mandatory reporting state for many years. By law, all adults who are aware or have a suspicion of child abuse or sexual abuse of a child under the age of 18 must report to the DHS Child Abuse Hotline, 800-522-3511.6 By way of caveat, be aware that the attorney-client privilege does not exempt anyone from these reporting requirements.
The Safe Sport Act also addressed much-needed investigation and enforcement mechanisms. It requires the Center for SafeSport to establish policies for handling allegations. The center has an investigation process. The center will also hold hearings after their investigation. Following the hearing, individuals may be placed on a banned list. Unfortunately, the sheer number of complaints along with lagging funding is threatening to swamp the process. As Nancy Hogshead-Makar, 1984 Olympic swimmer, civil rights lawyer and founder of Champion Women, an advocacy group for girls and women in sport, reports, “Think about it, what police station, what HR department could handle the flood of complaints? Each one has to be investigated, and they must hold a hearing in order to remove a coach from the Olympic movement… the Center desperately needs more money to be able to scale up.”
The Safe Sport Act also provides guidelines for civil actions. The act acknowledges that for many people the recognition that what happened to them as children was actually sexual or criminal in nature often does not occur until years after the event. Thus, the Safe Sport Act provides an extended statute of limitations for civil cases of 10 years after the date of discovery of the act or injury. The act does not define what constitutes discovery. Oklahoma’s civil statute of limitations governing childhood sexual abuse was extended in 2017 until the victim’s 45th birthday.7 This extended period, however, only applies to perpetrators and not to youth-serving organizations.
Youth sports programs, like all youth-serving organizations, give adults access to youth. In many sports, there are also “high-risk” factors including overnight trips, changing in locker rooms and travel to practices and games where an athlete may be driven by a coach or volunteer.
In addition to the fact that all sports are body-oriented, there is also a power imbalance between coaches and athletes. Coaches are given a lot of authority over athletes, even children. Coaches may set up a culture where their authority is not to be questioned, at risk of playing time or other disincentives. Additionally, while abuse may occur in all sports, individual athletic sports such as gymnastics and swimming may be even riskier because the one-on-one is inherent in the sport.
Given all these risky circumstances, the Safe Sport Act requires that the Center for SafeSport establish policies for preventing abuse. Many national youth-serving organizations already have explicit prevention policies in place. The center offers a variety of online training courses aimed at creating safe and respectful sport environments for all athletes. Their website8 also provides guides for parents of children involved in sport. For those who may need information for implementing safety procedures for local organizations, the center’s own code can be found online.9 Many other national organizations also offer resources. Over five years ago, the National Center for Missing and Exploited Children hosted more than 50 of the nation’s largest youth-serving and youth sports organizations to discuss strategies for protecting children from sexual abuse.10 The principles that were developed at this summit mirror those that SafeSport has adopted.
For all of these reasons, local youth-serving sports organizations should make sure that they have taken the steps necessary to reduce the chances of child sexual abuse within their organization.
MAKING LOCAL SPORT SAFE
Screen Employees and Volunteers
Organizations need to review state liability for negligent hiring, protection of privacy rights of employees and volunteers and laws preventing employment discrimination to come up with a reasonable background investigation. Because of the known risks of child sexual abuse, a background investigation for an employee or volunteer who works with children ought to be done. The Boy Scouts have required adult volunteer criminal background checks since 2003.11 An adequate background check typically includes a criminal history check at the state and national level and searching sex offender and child abuse registries. There are organizations that will conduct these searches for a fee.
Train Adults and Youth Athletes
Screening employees and volunteers is a first step. Having clear boundaries and rules in place during sporting events is also necessary. The basis of much of this training is preventing one-on-one situations between adults and youth. This is especially an issue for youth competitive sports where there is frequent travel and overnight stays in hotel rooms. The Centers for Disease Control offers policies that can be adopted by local organizations.12
Many youth-serving organizations also offer training for both children and adults in recognizing and reporting child abuse. The Amateur Athletic Union began such training in June 2012 including different training for staff, coaches, volunteers, parents and caregivers and children and youth athletes.13 Training should include a definition of what is abusive conduct. It should teach employees and volunteers to identify child abuse and recognize disclosures. Training should also educate adults on their duties as mandatory reporters and encourage children to report to a trusted adult. As stated above, Oklahoma is a mandatory reporting state for all adults. Under SafeSport, all organizations under the Olympic umbrella also require participants, coaches and volunteers to be mandatory reporters. Training the adults within a sports organization on the law regarding mandatory reporting so they know what to do when the subject comes up helps protect, not just kids, but the adults involved in the sport also.
Reporting and Responding
An organization should have a process in place for how they will respond to an allegation of abuse. The response should include the mandatory reporting, but also address who needs to know about the allegations and what steps will be followed and by whom to deal with the allegations. The process needs to protect both the potential victim and the individual alleged to have abused. At this stage, everyone has legal rights to be protected.
Historically, widespread child sexual abuse occurred because of silence and inaction in the face of suspicious activity. Even now, an unwillingness to believe a beloved coach or everyone’s favorite volunteer may be engaged in misconduct allows abuse to occur. Many of the signs of abuse are subtle. With education and training, the hope is that more adults will raise an alarm when behavior seems concerning. Insistence on the existence of child protection rules and compliance with those rules by parents and other involved adults will help create an environment for safe sports.
As our country becomes aware of the extent of sexual abuse within athletics and the lifelong harm that sexual abuse causes to the victim, it is imperative that those involved in sports take action. Education and training are tools for prevention. The Safe Sport Act recognizes the need to take action and lays out a roadmap for local organizations to follow. Sports, whether amateur or competitive, should be safe for athletes.
ABOUT THE AUTHOR
Laurie Koller is a solo practitioner representing victims of sexual harassment, abuse and assault in civil cases. She is a 1991 graduate of Duke University School of Law. She is currently vice president of the Oklahoma Association for Justice.
1. U.S. Center for SafeSport.
2. Norman D. Bates and Christine Army, “Preventing Child Sexual Abuse in Youth-Serving Organizations,” 2014, at p 7, citing Parent, S. (2011), “Disclosure of sexual abuse in sport organizations: A case study,” Journal of Child Sexual Abuse, 20, 322-337.
3. Doe v. U.S. Youth Soccer Association, 8 Cal.App.5th 1118 (2017).
4. 2008 OK 70, 188 P.3d 158, as corrected (July 2, 2008).
6. 10A O.S. §1-2-101.
7. 12 O.S. §95(6).
11. Bates, at 37.
13. Bates, at 38-39.
Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 7 (October 2018)