Justice Options for Athletes
Seeking Justice
After experiencing sexual misconduct, survivors embark on their own healing journey, which can be unique in numerous ways. Survivors face various extents and combinations of physical, emotional, and/or mental hardships, and engage in different types and levels of support on their own and within their communities. Seeking justice may also be part of a survivor’s healing process. In efforts to empower survivors and support their healing journeys, #WeRideTogether aims to provide education and increase awareness of the justice options a survivor can pursue. The needs of each survivor and situation are different. Every path to justice has its own set of pros, cons, and controversial opinions surrounding it. Outcomes for each justice option can vary from highly positive to lackluster and even harmful. Lastly, these processes can take a long time. It is important to remember numerous resources exist to aid in the steps a survivor chooses to take, and that healing and justice can be realized in a variety of ways.
Reporting
One frequently discussed action that can be taken after abuse has occurred is the choice to report to local authorities. First and foremost, if you are a mandated reporter who suspects, witnesses, or hears of child sexual abuse or misconduct, you are legally obligated to make a report to local authorities. *Please note in some states all adults must report. To view mandated reporting laws, resources to contact your local authorities, and child welfare and human services departments, visit childwelfare.gov.1 If you are an adult supporting a minor who has experienced sexual misconduct or abuse and you are not a mandated reporter, you can still make a report to local authorities.
Mandated reporting laws were designed for public health and to protect individuals.2 Reports and investigations are conducted differently across jurisdictions with the purpose to support the child, connect them with services, and identify the scope of the abuse as well as the person responsible.3 However, research from the Trauma, Violence & Abuse peer-reviewed journal details how the mandatory report may have unforeseen negative consequences on the victim and their family.4 These consequences include impacts of systemic bias on certain populations, and mandated reporting laws creating a barrier for victims to seek help due to conflicts between disclosure and confidentiality.5
The nuance here, which applies to survivors under or over the age of 18, is the difference between disclosing and reporting. Often survivors disclose abuse in order to connect with and access support and resources.6 However, the mandated reporting system for minors and the Title IX policies found in higher education create a chain of events in which disclosure also includes reporting. This is important to highlight in terms of empowering survivors to have control over their situation and process. Therefore, it is important to identify who is a mandated reporter, which varies depending on your state, as persons you may disclose to may be required by law to take reporting action steps without your consent. For anyone under the age of 18, whether you are a survivor or a friend of a survivor, take a moment to identify a trusted adult, who may or may not be a parent, who can help you navigate the disclosure and reporting process. These are heavy and complicated topics, and it is important that survivors and their supporters have safe individuals they can disclose to without fear of recourse.
Adults, whose experiences do not fall within the jurisdiction of specific university policies, are able to disclose experiences of sexual misconduct and abuse and receive support without cascading reporting. On a systemic level “more than 2 out of 3 sexual assaults go unreported” and very few of the persons accountable will be prosecuted, and even fewer will be incarcerated.7 Survivors often choose to decline to report such events to local authorities for many reasons, such as fear of not being believed, victim blaming, guilt and shame, fear of retaliation, lack of outcome from law enforcement, and wanting to keep the matter private.8 It is important to note that adult survivors can still receive support, such as therapy and resources, without going through the reporting process or any justice option.
Additional Reporting Entities - SafeSport and Title IX
Separate from law enforcement and protective services, additional governing bodies exist in the realm of sexual violence for reporting in some education and sport settings.
So long as you are a participant under the Olympic and Paralympic Movements (member, license holder, employee of a National Governing Body (NGB) or its Local Affiliated Organizations (LAO), a volunteer, trainer, coach, athlete, or contracted individual), you are able to “make a report to U.S. Center for SafeSport of abuse or misconduct involving one of 11+ million individuals in 50+ Olympic and Paralympic sports at national, regional, and local levels.”9 Reports to SafeSport are separate from reports to local authorities and can be filed in tandem or in lieu of those reports. In cases of child sexual abuse or misconduct, mandated reporting laws are in place, and reports should be made to local authorities first and then with SafeSport. SafeSport conducts its own response and sanction process for reports concerning individuals under their authority in the U.S. Olympic and Paralympic Movements. It’s important to understand that if SafeSport receives a complaint that would fall under the legal criminal code (even if anonymous), it must immediately report the complaint to the appropriate law enforcement agency. Once that occurs, law enforcement has the option of putting the SafeSport process on hold and taking over the case. If this happens, SafeSport generally follows the law enforcement ruling. During the Response and Resolution Process, SafeSport may issue temporary suspensions and final sanctions on public record to remove the respondent deemed in violation of the SafeSport Code from privileges in sport. It’s important to note that even if a participant is deemed permanently ineligible by SafeSport, they are only prohibited from participating, in any capacity, in any program, activity, event, or competition sponsored by, organized by, or under the auspices of the United States Olympic & Paralympic Committee, any NGB, and/or any LAO, or at a facility under their jurisdiction. This means they can still be involved in sports and work closely with athletes outside of the umbrella of the U.S. Olympic and Paralympic Movements.
Similarly, educational institutions, K-12 and universities, that receive federal funding must abide by the federal Title IX civil law, which addresses sexual discrimination. Title IX includes regulations that schools must “respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decision makers to evaluate the evidence [and] provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.”10 These policies extend into the realm of athletics within schools regarding participation, scholarship, and resources for athletes.11 Your school should have a Title IX coordinator who is responsible for listing the grievance and reporting procedures at your institution.12 For general information on the Title IX reporting process, please visit the Survivor Toolkit published by Equal Rights Advocates.13
Which Justice Path to Choose
Currently, if a survivor elects to disclose and report misconduct or abuse, they can choose among several main approaches in seeking justice. These pathways include reporting to local authorities and going the route of the criminal justice system and/or pursuing a civil suit; or disclosing to a restorative justice agency and finding justice through that process. The restorative justice process can be accessed in tandem with reporting to local authorities and pursuing a criminal and/or civil suit. Please note that mandated reporting practices do exist for abuse involving minors, and these laws, practices, and proceedings vary state by state. For survivors over the age of 18, more choices exist. We encourage survivors and supporters of survivors, being mindful of disclosure and reporting as discussed above, to reach out to the Courage First Athlete Helpline at 888-279-1026 and legal options counselors to discuss your particular case, find resources that you need, and navigate options in your jurisdiction.
Criminal and Civil Processes
One may choose to report and proceed in the traditional criminal justice system for a variety of reasons. These potentially include seeking outcomes such as the punishment and/or incarceration of the wrongdoer, possible changes in the law with the hope that future crime will be deterred, and protecting one’s community.14 This process includes making a report and pressing charges.15 Progression from here relies on various factors, such as the evidence available, meeting legal standards of a crime, and being able to identify the responsible person. From here, plea bargains or trials, including testifying, could occur. Similarly, civil suits can also be a legal justice option that can be pursued separately or in conjunction with criminal cases. SurvivorSpace concisely defines civil cases as “legal actions seeking compensation or resolution,” which have a discovery and trial process.16 The burden of proof is lower in a civil suit option versus criminal cases.17
Restorative Justice
Some survivors may choose the pathway of restorative justice. The restorative justice process materialized in the 1970s from deep-rooted historical practices of justice from indigenous cultures across the world and is becoming a more mainstream option today.18 With the restorative justice approach, survivors embark on a cooperative process that focuses on repairing harm caused by the responsible person.19 The National Center on Restorative Justice, Associate Director, Lindsey Pointer, Ph.D., details that restorative justice can be accessed in conjunction with criminal proceedings or in place of legal proceedings.20 The restorative justice option relies on the participation of both the survivor and the responsible person. Therefore, both parties must willingly agree and commit to this process. During the restorative justice experience, there is an emphasis on acknowledging the harm done, discussions on what needs to occur in efforts to address and repair such harm, and on finding reintegration into the community for both parties.21 There are several formats to the restorative justice process that can take a direct or indirect format.22 Most often, restorative justice is conducted in a direct format called a circle, led by a trained facilitator, in which all parties are present including the survivor, the responsible person, support persons, and advocates for each the survivor and the responsible person, and affected community members. Other formats include conferences, video communication, letter writing, and shuttling messages through an additional party. Separate preparation sessions precede such circles or any communication with the offender in which survivors and the responsible person work to identify their needs and desired outcomes with their advocates.23
Considerations from a Trauma-Informed Perspective
There are upsides and downsides to each of these options, and certain justice avenues may not be appropriate or accessible for all survivors and circumstances. Each survivor has their own method and prerogative for healing and seeking justice. Again, there is a caveat for situations with minors in which certain reporting and justice options are automatic and the survivor may not have as much agency and choice after disclosing. In such cases, consulting with a legal counselor and researching options in your area in accordance with local laws is best practice. Please note that helplines can provide free and confidential information, and that in some jurisdictions, legal counsel may be mandated reporters.
Often a major consideration for survivors post misconduct or assault is considering and evaluating if their next step in healing and/or seeking justice is trauma-informed. Providers, processes, and actions can be deemed as trauma-informed if they are knowledgeable of trauma and even more so compassionate, respectful, empowering, and mindful of the safety of trauma survivors and their specific needs. Moreover, it is most trauma-informed for survivors to have adequate information and make their own choices in healing.24 This empowers survivors to better weigh the various processes and potential outcomes of each justice option and decide how they may want to proceed in accordance with their unique wishes and resources.
Important considerations may include that most often the criminal justice and even civil system are not seen operating in a trauma-informed manner, meaning that proceedings may be invalidating, retraumatizing, or inconclusive. These avenues are often more public, and time and resource intensive. On the other hand, the lesser known restorative justice option also has its imperfections, which are important to understand. No two restorative justice circles are identical, which some argue leads to their efficacy, but makes outcomes more difficult to generalize.25 Additionally, the restorative justice option is inappropriate or not possible for some abuse cases, for instance, when age and safety concerns are limiting variables; in such occurrences, opinion must be consulted from trauma-informed professionals, such as legal aid and/or mental health experts.26 This is because the responsible party must admit to harm caused and may not want to do this or be involved in this process. It can also be hard, ill advised, or unsafe for survivors and offenders to be in the same room. Risk must be assessed in these scenarios when power imbalances and/or manipulation may be involved.27 And, sometimes there are not viable community support options to match compensatory harm action steps determined in the restorative justice circles and/or resources to reduce potential recidivism.28
However, for some survivors, the restorative justice process provides exactly what they want and need to heal, and the circle can provide the opportunity to confront the responsible party on the exact nature of the harm done and hear accountability and a specific plan to address the issue.29
The circle format can help the responsible party address their behavior and engage in specialized services and solutions to support healthy behavior in the future and reduce recidivism.30 Restorative justice options rely on being more trauma-informed, as exhibited by the language they use as well as the preparation of a safe environment in which survivors are empowered and assisted by advocates to have a space for their questions to be answered and their voice heard.31 Currently, restorative justice agencies and organizations are on the rise, but funding and/or accessibility for this option may be an additional barrier in certain areas and for particular cases. College campuses and schools have been strong early adopters of this justice practice and may have their own criteria for conducting circles involving sexual abuse.32
Again, there is no right or wrong method in seeking justice following the experience of sexual abuse or misconduct. #WeRideTogether suggests survivors reflect and evaluate their options and make decisions for themselves in accordance with what they need and are ready for with personal and professional support. We encourage you to visit the sources cited in this article, learn about the laws in your state, consult with a legal options counselor, and/or chat with a restorative justice agency near you.
Download the Justice Pathways for Athletes Infographic to better visualize the options described in this article.
deep-rootedKathryn McClain, MSW, MBA
Program and Partnerships Director at #WeRideTogether
kmcclain@weridetogether.today
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#WeRideTogether provides general information that is intended, but not guaranteed, to be correct and up-to-date. The information is not presented as a source of legal advice. You should not rely, for legal advice, on statements or representations made within this website or by any externally referenced Internet sites. If you need legal advice upon which you intend to rely in the course of your legal affairs, consult a competent, independent attorney. #WeRideTogether does not assume any responsibility for actions or non-actions taken by people who have visited this site, and no one shall be entitled to a claim for detrimental reliance on any information provided or expressed.
Resources
1 https://www.childwelfare.gov/topics/responding/reporting/how/
2 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7493571/
3 https://www.childwelfare.gov/pubpdfs/repproc.pdf
4 https://journals.sagepub.com/doi/abs/10.1177/15248380211030239 (for free access: https://figshare.com/articles/journal_contribution/Mandatory_Reporting_and_Adolescent_Sexual_Assault/22658818)
5 Ibid.
6 https://www.pnas.org/doi/10.1073/pnas.2116515118
7 https://www.rainn.org/statistics/criminal-justice-system
8 https://www.dlawgroup.com/reasons-people-do-not-report-sexual-abuse/
9 https://uscenterforsafesport.org/report-a-concern/
11 https://www.ncaa.org/sports/2014/1/27/title-ix-frequently-asked-questions.aspx#how
12 https://knowyourix.org/college-resources/title-ix/
14 https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1533&context=clr
15 https://www.rainn.org/articles/what-expect-criminal-justice-system
16 https://survivorspace.org/civil-litigation/
17 https://www.findlaw.com/injury/torts-and-personal-injuries/civil-sexual-assault-lawsuits.html
18 https://charterforcompassion.org/restorative-justice/restorative-justice-some-facts-and-history
19 https://nbtitleix.rutgers.edu/restorative-justice
21 https://why-me.org/wp-content/uploads/2021/09/Why-Me-RJ-Domestic-Sexual-Abuse-2021-v3-1.pdf
22 https://www.rjkent.org.uk/news/the-restorative-justice-process
23 https://nbtitleix.rutgers.edu/restorative-justice
24 https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd10-rr10/p3.html
25 https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1533&context=clr
26 https://www.goodhousekeeping.com/life/a37234704/restorative-justice/
27 https://www.euforumrj.org/en/restorative-justice-and-sexual-violence
30 https://www.youtube.com/watch?v=wPA-p6UUDl4
31 https://why-me.org/wp-content/uploads/2021/09/Why-Me-RJ-Domestic-Sexual-Abuse-2021-v3-1.pdf
32 https://www.itsonus.org/wp-content/uploads/2019/07/IOU-Resource_Restorative-Justice.pdf
