In a recent interview with The Chronicle of the Horse regarding the new group “Athletes For Equity In Sport,” Ms. Diane Carney frequently references our judicial system. As an attorney and an equestrian, I was troubled by how many of her claims ranged from misinformed to flat out inaccurate. There has been a lot of controversy surrounding the SafeSport process and many calls for reform. We need SafeSport. We may also need to improve it. But any call to make the process a better one must start with a basic grasp on what our legal system does and does not do, how it operates, and where SafeSport fits in.
SafeSport was enacted by Congressional legislation to be the first line of defense for sexual assault accusations in Olympic sports and was specifically empowered to address such concerns. This is not a new idea. Under Title IX, when a college receives notice of a reported sexual assault it is required to conduct its own investigation—even if law enforcement is conducting an investigation. Ms. Carney mentions that Congress recommended that all cases handled by SafeSport be reported to law enforcement because “criminal laws have been placed in the books to be handled by trained law enforcement and lawyers trained in legal criminal process.” This is absolutely true. But that does not mean that any action taken outside of the criminal court system is inappropriate.
Ms. Carney laments SafeSport becoming “the new moral code in the United States.” She worries that it will be “above the law” and serve as “judge, jury and sentencer.” But our legal system recognizes that the courts are not the only place to resolve disputes, and that sometimes other institutions are more appropriate. For example, if you are discriminated against in the workplace, Congress has legislated that you are required to first file your complaint with the Equal Employment Opportunity Commission before you may turn to the court. If you fail to do so, the court will refuse to hear your lawsuit. The EEOC has not become the new moral code, but rather it too acts as the first line of defense for a type of grievance Congress has specifically empowered it to address.
Yet Ms. Carney seems to think that a criminal court is the only place appropriate for allegations of sexual assault, as “SafeSport weakens the standards of proof.” She references the “flimsy standard” of 51 percent. The standard of proof she is referring to is called a “preponderance of the evidence” and is used in every civil courtroom. If you file a lawsuit in civil court, or are sued in civil court, that is what the standard will be. This is not a “flimsy” standard SafeSport has arbitrarily decided on—it is the standard of proof used in every civil trial in the United States. SafeSport is holding accusers to the same exact standard of proof as our judicial system—just not the criminal system.
Because criminal convictions can carry the possibility of incarceration or, in certain limited cases, the death penalty, our Constitution requires every element of a criminal charge to be proven “beyond a reasonable doubt” before someone may be sentenced for a crime. Civil lawsuits, where one is found “liable” instead of “guilty,” carry consequences that are less severe than a criminal conviction but can still greatly impact a person’s life. Examples include a significant monetary judgment, a public adjudication of legal responsibility, or loss of a job and professional license. These consequences are properly met with a standard of proof by a preponderance of the evidence.
Ms. Carney thinks that this standard of proof “is incorrectly the difference in the rest of that person’s life.” I would guess every person who has been found liable in a civil trial probably agrees. But that does not change the fact that our legal system has required the “reasonable doubt” standard only for individuals facing criminal convictions.
Although it may feel like SafeSport is charging people with crimes, it is not. SafeSport can’t find someone guilty of a crime. It can’t put someone in jail. It can only find that someone participated in conduct that violated its rules, and its only recourse is to withhold membership in an organization. This certainly may lead to monetary or reputational loss for someone whose career depends on participation in the U.S. Equestrian Federation, just as monetary and reputational loss are equally at risk in a civil lawsuit. Therefore the “preponderance of the evidence” standard is the appropriate standard for SafeSport to apply.
SafeSport is a necessary addition to our criminal and civil court systems because it serves an entirely different goal. Our criminal justice system enforces the law through punishment: You break the law, and you receive a sentence for your crime. In the civil court system, the person who was wronged brings the lawsuit and can ask for a certain amount of money that will compensate them for the harm they have suffered or an injunction against further action by the defendant. SafeSport’s goal is entirely different: protecting young victims from sexual abuse within sports, a context in which adults are given particular access to and control over children. It bans abusers from organizations in an effort to prevent further abuse.
It is not unconstitutional for SafeSport to do so. Ms. Carney mentions that absent from SafeSport’s policies is the Sixth Amendment’s constitutional right to confront your accuser (known as the “Confrontation Clause”). What she does not mention is that the Confrontation Clause only applies in a criminal proceeding. If an accuser sues for sexual assault in civil court, the accused does not have a constitutional right to confront their accuser. SafeSport is not stripping people of their constitutional right of confrontation because outside of a criminal trial that right simply does not exist. To argue that the same constitutional safeguards granted to criminal defendants facing imprisonment or death must be given to someone facing expulsion from a voluntary equestrian organization is absurd.
SafeSport does not unconstitutionally deny due process either. The Fifth Amendment prohibits the federal government from depriving “life, liberty or property without due process of law.” The Fourteenth Amendment applies the same provision to state governments. Regardless, this only applies to actions by the government or government agents. A private citizen or company cannot deny you due process because they are not bound by this provision of the Constitution. SafeSport is only bound by the due process clause if they are acting as the federal government. That is why Athletes For Equity In Sport argues that “SafeSport is an arm of the government, through Congressional enactments” and a “quasi-judicial actor.”
But despite Ms. Carney’s claims, the Supreme Court has already decided that organizations like SafeSport are not government actors. In San Francisco Arts & Athletics., Inc. v. United States Olympic Committee, the Supreme Court determined that the U.S. Olympic & Paralympic Committee was not a government actor, despite being established under federal law, because the government had not “exercised coercive power [nor] has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government].” SafeSport is a nonprofit organization with an independent board of directors, who were approved by the USOC—the very organization determined not to be a government actor by the Supreme Court. SafeSport’s decision on whether or how to conduct its investigations is not controlled or coerced by the government and is not a government action. SafeSport cannot unconstitutionally deny due process because the due process clause does not apply to it.
In the workplace, a supervisor can fire an employee who is sexually harassing other employees without violating the due process clause. It is not a prerequisite that the employee be charged with a crime, and it is not a prerequisite that the employee file a lawsuit in civil court. A supervisor can recognize that the employee is a danger to other employees and remove them from the workplace to prevent further abuse. Ms. Carney mentions that she feels it is irresponsible for SafeSport to create a space of, “Well, it won’t hold up in court, but it ought to be somewhere.” Unlike a court, SafeSport does not evaluate the merits of a claim to determine punishment or compensation. SafeSport is about keeping minors safe and creating a system that expels individuals who compromise that safety. Expulsion from USEF may carry with it incidental and unavoidable consequences and punishment, but the intent is to prevent perpetrators of abuse from having access to minors.
We need SafeSport because it fills a hole. Ms. Carney feels there is “no reason for them to be afraid to come forward and say, ‘This happened to me, and I’m not afraid of this being a stronger level of evidence because I know this happened to me.’ ” But there are many reasons victims of sexualized violence may be afraid to come forward. Foremost, many fear it will be futile. Because sexual assault and rape allegations are some of the hardest to prove in a criminal trial, prosecutors may be reluctant to bring charges. Out of every 1,000 cases of rape, only 13 get referred to prosecutor, and only seven lead to a felony conviction. A victim has no control over whether charges are brought. There are many reasons a victim may not want or be able to file a civil lawsuit: fear of reprisal, not wanting to disclose details of what happened to them, stigma, or the expense of the lawsuit itself. Whether in criminal or civil court, victims are put through an incredibly painful process once they do come forward. For a vivid firsthand account of what sexual assault victims go through, even when their case is incredibly strong, I would refer Ms. Carney to Chanel Miller’s Know My Name: A Memoir.
By allowing anonymous reporting, SafeSport ensures that further abuse can be reported without fear of reprisal. It allows victims and those who are aware of abuse to help prevent future abuse without endangering themselves. Title IX also allows anonymous reporting for this same reason. Like SafeSport, Title IX may also ban the subject of an accusation pending an investigation. These issues inherently present a tension between the rights of the accused and the rights of the accuser. It is something that Title IX has struggled to balance. Our criminal justice system has also struggled with it, as has our civil court system. That is why Ms. Carney’s assertion that all we need to do to solve this tension is “sit down and talk about it” is insulting. This is an issue that many have devoted extraordinary amounts of time, legislation, legal articles and advocacy to solving. It is pure hubris to think all we ever needed was Athletes For Equity In Sport to sit down and think about it.
SafeSport was created after news broke that Larry Nassar, in his role as a USA Gymnastics national team doctor, had been sexually assaulting hundreds of children for almost 20 years. Trainers and other officials in sports are given a particular type of access to minors. That position carries responsibility and trust. It also carries a power imbalance. In our industry especially, where weeks can be spent at horse shows in hotels and working student positions are common, adult trainers have unique exposure to their minor students. We have seen firsthand what happens when someone extremely well-respected in a sport exploits their position and access and uses it to sexually assault minors. We have also seen an industry’s reluctance to believe that it happened. It took almost 15 years, multiple police investigations, and numerous victims coming forward for a sport to finally accept what Mr. Nassar had done. SafeSport is trying to make sure nothing like that happens again. Are you, Ms. Carney?
Have an experience with SafeSport that you’d like to share, on or off the record? Email Erin at firstname.lastname@example.org.
Ryan Lefkowitz grew up riding horses in Westchester County, New York, and rode for the SUNY Geneseo Equestrian Team while in college. After college, she was a working student for Findlay’s Ridge and a barn manager for Spring Ledge LLC. She has previously blogged and freelanced for The Chronicle of the Horse. After graduating magna cum laude from Syracuse University College of Law, Ryan began working at a law firm in Manhattan, where she is currently a litigation associate.
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