Being accused of misconduct is expensive and unpleasant regardless of the venue. I can’t imagine he would have found it less stressful if he’d been arrested by the police for an unfounded report or if he’d been the target of an expensive civil suit.
Being a victim, as I wrote before, is also extremely expensive and creates a lot of lost sleep.
Obviously, we all want a process that is as fair as possible. We don’t get more fairness by not having a process.
I understood the comment to mean that since she was his employee, there was an imbalance of power. It’s not OK to hit on your employees because of the imbalance of power.
Thanks for the honest follow-up question. This is a somewhat oversimplified answer, but it will get at most of the key things. Also, it is based on the information that I have been able to obtain from the SafeSport site.
I view the SafeSport process as consisting of two main parts:
(1) The first part is based on investigation by a trained investigator, a written report, and a decision by a Director. (I am ignoring the intake part because it is not that important in my response.)
(2) If the decision is negative for the accused, there is an arbitration process if requested by the accused.
Part 1 is devoid of due process. It more or less is parallel to investigation by the police together with the decision to prosecute by a district attorney. Just so we are not talking past each other, we can use the definition of procedural due process given by Wikipedia as what I mean by due process: (https://en.wikipedia.org/wiki/Procedural_due_process). Item 4 on this list does not explicitly say a right to compel a witness to testify (i.e., issue a subpoena to a witness), but this is a fundamental part of due process in my view.
Part 2, the arbitration part, is much better, but it still has major deficiencies.
Specifically, I see no right to know all opposing and exculpatory evidence (in advance of the hearing). There is no discovery and it appears that the investigator is not compelled to present all favorable evidence to the accused. Also, being blindsided at a hearing my negative evidence you don’t know about is fundamentally unfair as there is not time to investigate and develop a response. This last issue may be addressed by the preconference hearing where exchange of evidence is mentioned, but it is not clear. But the exchange of evidence to be used in the hearing (preventing blindsiding) is not the same thing as a requirement to exchange all evidence.
The right to cross-examine witnesses is violated because testimony by affidavit and hearsay evidence is allowed. You can’t cross examine written testimony and you can’t cross-examine what a witness says somebody else said. Also, the “reporting party” is only subject to cross-examination by the arbitrator.
The right to a decision only based on the evidence presented may be violated because the Decision of the Director in part 1 is taken to be evidence, but there is no requirement that all of the evidence the Director relied on be presented.
The potential use of affidavits, hearsay, and the inability to compel witnesses are serious flaws. The respondent’s name has been published, the social media firestorm will begin, and it will be very hard for the accused to obtain witness evidence. This could be fixed to some extent by attaching to USEF membership a duty to serve as a witness if requested.
And remember, all of this is combined with a “preponderance of the evidence standard.” A preponderance of the evidence standard is very weak. It amounts to answering the question “Are you sure?” with “No, but I think so.”
I agree with @greysfordays response. When designing a system to address misconduct and abuse complaints, there is no perfect system. I am a statistics nerd, so I like to use the following analogy:
Hypothesis: “The evidence provided to SafeSport warrants a temporary suspension.”
Null Hypothesis: “The evidence provide to SafeSport does not warrant a temporary suspension.”
Type I Error: An innocent person is temporarily suspended.
Type II Error: A guilty person is not temporarily suspended.
If you wanted to eliminate all Type I error, you wouldn’t suspend anyone until an investigation was completed. If you wanted to eliminate all Type II error, you would immediately suspend anyone who was accused of any form of misconduct without a preliminary investigation. I don’t agree with either of those practices.
With that said, it’s very hard to minimize one type of error without increasing the likelihood for the other type to occur. So it becomes a balancing act.
What is your actual argument exactly? Are you saying SafeSport shouldn’t exist at all? That it shouldn’t exist until it’s perfect and completely fail-safe? That no innocent person will ever have to clear their name? Do you make that same argument for criminal laws? The system isn’t perfect and sometimes harms innocent defendants. So we just shouldn’t have a criminal justice system (since no system will ever be 100% perfect).
Except no one is going to jail or prison over a SafeSport ruling. They can’t go to USEF shows anymore.
From experience:
"The right to cross-examine witnesses is violated because testimony by affidavit and hearsay evidence is allowed. You can’t cross examine written testimony and you can’t cross-examine what a witness says somebody else said. "
The Responding Party can also present testimony by affidavit from therapists, doctors, others and SafeSport cannot cross examine those people. - Seems fair, both sides have a level playing field.
"Also, the “reporting party” is only subject to cross-examination by the arbitrator.”
Completely FALSE. The witness can agree to be cross examined by the Responding Party’s lawyer. And, there are cases where this did happen. No one gets deposed so no one knows what questions the lawyers may ask. SafeSport attorney DOES NOT represent the Reporting party (accuser/victim, whatever word you chose), therefore there is no coaching of a witness. They can equally be blindsided.
The right to a decision only based on the evidence presented may be violated because the Decision of the Director in part 1 is taken to be evidence, but there is no requirement that all of the evidence the Director relied on be presented
During the investigatory process, the Responding Party/Accused can present ANY evidence they want to the investigator. And the Director’s decision is NOT taken into evidence unless one party requests it be done. A full merits hearing starts from the beginning. If you know what is contained in the Director’s decision, you would understand what evidence was considered.
Preponderance of the evidence is the standard for a civil case. As stated, these are not criminal charges, SafeSport is not putting a person in jail, as would happen in a criminal case.
But it didn’t happen!
Originally posted by APirateLooksAtForty
What about when Safe Sport is used in a retaliatory manner by someone OF AGE claiming harassment or inappropriate conduct? This is exactly what happened with TS and exactly why I still have problems with it. Of COURSE sec with minors is wrong, of course minors should be 100% protected, but that isn’t the only conduct Safe Sport is trying to regulate.
But SafeSport should seek to regulate harassment of students or employees by trainers or even peers, whatever their age. Their mandate is not only to stop child abuse. I don’t know the facts of the TS case, so I’m asking the question. Was SafeSport actually used in a retaliatory manner by someone (an employee) claiming harassment ? Was that exactly what happened? Did she deliberately lie? Or was it a case where there was harassment, but not enough evidence to prove it? Or maybe a case of misinterpretation? He was found not guilty, so the system worked, although II’m sure it was no fun at all, but I don’t know the answer. I do know that it’s awfully easy to start claiming that some jealous b****h was out to ruin someone and have everyone automatically believe it.
Tommy’s wife presented their case very eloquently, but what about the other side? I don’t know. APirateLooksAtForty, do you have some insider knowledge? Because I sure don’t.
I actually didn’t find your comments on the similarities to drug rules to be silly. I do find the comment on lifetime memberships to be kind of silly. Plenty of groups offer lifetime memberships but that doesn’t mean you are exempt from rules and regs updates.
And again, apparently Safe Sport agreed! The system worked!
Are you really suggesting that we throw out Safe Sport (and carried to a natural end, then all USEF rules and the criminal justice and civil suit systems as well…heck, the bar, the HR departments, the teaching boards, etc.) because sometimes people make false reports?
Someone could make a false report against someone via any governing body, whether it’s a disgruntled parent mad about playing time to a kid’s soccer league, a disgruntled wife after a fight making a domestic claim against a husband at the local precinct, a disgruntled fellow employee after being turned down for a date to the HR department, a disgruntled teen after receiving a bad grade to a teaching board…the possibilities are, unfortunately, endless, because there are liars in this world (alongside sexual offenders).
I truly sympathize with people in that position, but it’s no argument to abolish Safe Sport or any other set of rules and procedures. We should work to make those systems as effective as possible at sussing out false reports and establish penalties for false reports…but not throw away the system.
I’d be totally ok with a hefty suspension laid out to a vindictive accuser, using the same preponderance of evidence used to determine guilt in the accused.
Would that quiet that argument down?
Please feel free to continue lumping everyone into categories that make it easy for you to take a stand that makes you feel morally superior.
Thank you for the comprehensive response.
First, I need to address your analysis of “Part 1”. From my personal experience, in most cases the accused was (regularly) made aware of the evidence against them and given the opportunity to respond directly. In all cases*, they had the opportunity to provide evidence in their defense throughout the entirety of the investigation.I would argue that what you described is closer to the Intake Process .
*I’m excluding cases in which the responding party was criminally convicted (either through a trial or guilty plea) of a crime directly related to the incident before the conclusion of the SafeSport investigation. In these cases, SafeSport essentially “skipped” the process to the final decision since criminal courts have a much higher standard of evidence.
The only cases that I’m aware of in which the accused was not regularly made aware of the evidence against them throughout the investigation was when they refused to cooperate with SafeSport and the reporting party’s attorney (for example, in one of those cases, the accused refused to provide copies of text messages between himself and the accuser - even though one of his main defenses against the accusation that they were in a sexual relationship was that the text messages that she provided to SafeSport were doctored. The accuser continued to cooperate with both SafeSport and the responding party’s attorney). IMO it’s not a perfect system, but due to the fact that SafeSport does not have the ability to subpoena records, I believe this serves as an alternative.
I’m admittedly a bit biased against the arbitration hearings. I think that they are very fair in theory but they have been nothing short of a disaster in practice. I believe that Colin Burns and the Lopez siblings cases were already discussed earlier so I’ll leave it at that for now.
@Keep it Simple summarizes my other responses very well.
We will probably just have to agree to disagree re: the standard of evidence required for a SafeSport sanction.
The preponderance of the evidence is the standard of evidence used in most civil trials (there are exceptions of course, such as claims involving fraud, wills or important life decisions such as withdrawing life support - in which the “clear and convincing” standard of evidence is used).
TBH I don’t really see why a lifetime ban from a private organization, such as the USEF, should require a higher standard of evidence than say, being ordered to pay $10 million in a sexual assault lawsuit.
The fact that she was his employee is what made it possible for her to lodge a complaint. If he was having an affair with some random woman, there would be no basis for complaint. It’s that balance of power thing.
A level playing field is not what due process means. In the law, the trier of fact (the person or persons who decide the case) must determine how credible testimony is. A key principle in our law in that cross examination is fundamental to determining the credibility of testimony. A witness is generally called by one side or another which is usually the side they align with. The witness will answer questions from this “friendly side.” They will then get questions from the other side which are generally intended to discredit the testimony (cross examination). This is often followed by rebuttal questions from the friendly side. The principle is that without cross-examination, there is no valid way to determine if testimony is credible. Also, the testimony should be in the presence of the trier of fact so that they can use witness facial expressions, body language, tone of voice, etc. as a part of their assessment of credibility.
An equal opportunity to provide unreliable evidence does not result in due process.
Actually what I said is completely true. The reporting party is only subject to cross-examination by the arbitrator unless the reporting party voluntarily agrees to cross-examination by the opposing party. This is also true for the responding party which I did not say the first time because I was focusing on due process for the accused. But rather than argue semantics, here is what the rules say:
“The Responding Party and Reporting Party shall be
subject to questioning by only the arbitrator unless the
Responding Party or Reporting Party agrees to direct
examination and cross-examination by the opposing party.”
I agree that it appears that both parties can be blindsided, but again equality in the lack of due process does not create due process.
You are correct that the Directors report is only entered into evidence if one party requests it. I would imagine that the vast majority of the time (if not essentially all the time) the Reporting Party will enter it into evidence since it supports their position. But once in evidence, what I have said above is true.
This is not a criminal trial. Preponderance of the evidence is the standard for most civil trials where monetary damages are involved. Other civil trials use a clear and convincing standard of evidence. To suggest (as many have in this thread) that “not criminal” (i.e., civil) means “preponderance of the evidence” is the only appropriate standard of evidence is, basically, incorrect.
I ran into this interesting article entitled: [h=2]Due process legal update: Judge holds that ‘preponderance of evidence’ standard may be unconstitutional in campus sexual misconduct proceedings[/h] Here is the link: https://www.thefire.org/due-process-legal-update-judge-holds-that-preponderance-of-evidence-standard-may-be-unconstitutional-in-campus-sexual-misconduct-proceedings/
Why are you so worried?
It’s not that difficult. Don’t have inappropriate interactions with minors. Follow the SafeSport guidelines.
They are there for the protection of everyone.
Thou doth protest too much.
“[P]reponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
Honestly, I think this comes down to the judge’s personal opinion about the severity of the punishment. He believes that the potential consequences (expulsion and a notation on the student’s permanent record) should require a higher standard of evidence. I could name a dozen judges who disagree.
As I stated previously, the preponderance of the evidence is the legal standard used in most civil lawsuits (there are exceptions, of course, such as claims involving fraud, probates of wills, loss of parental rights, or important life decisions such as withdrawing life support - in which the “clear and convincing” standard of evidence is used).
If a person is sued for sexual harassment, sexual assault, sexual abuse of a minor, etc., the standard is “by the preponderance of the evidence”. Being found liable of sexual assault in a civil court carries a myriad of severe consequences (such as financial losses,harm to reputation, negative emotions, etc).
You’re essentially arguing that, for example, being found liable of sexually assaulting a minor and being ordered to pay $3 million dollars in damages in civil court should require a lower standard of evidence then being given a lifetime ban from USEF-sanctioned activities. I don’t see how the latter punishment is worse than the former.
SafeSport has to weigh the odds. Requiring a higher standard of evidence would effectively lower the potential for type I error (an innocent person is sanctioned) but it would also increase the potential for type II error (a guilty person is not sanctioned).
In other words, they would be decreasing the likelihood of an innocent person being sanctioned while increasing the likelihood that a predator is allowed to stay affiliated with their organization and work with vulnerable populations, including minors. I don’t want to sound callous to anyone who has been falsely accused, but when I look at it that way, I see absolutely no reason for SafeSport to raise the legal standard of evidence required to impose a sanction.
“A level playing field is not what due process means. In the law, the trier of fact (the person or persons who decide the case) must determine how credible testimony is. A key principle in our law in that cross examination is fundamental to determining the credibility of testimony. A witness is generally called by one side or another which is usually the side they align with. The witness will answer questions from this “friendly side.” They will then get questions from the other side which are generally intended to discredit the testimony (cross examination). This is often followed by rebuttal questions from the friendly side. The principle is that without cross-examination, there is no valid way to determine if testimony is credible. Also, the testimony should be in the presence of the trier of fact so that they can use witness facial expressions, body language, tone of voice, etc. as a part of their assessment of credibility.”
I did not say a level playing field is the equivalent to due process. I was responding to your comment that written testimony cannot be cross examined. I pointed out each side can submit written testimony. The arbitrator (and Director in the previous stage) weighs all the evidence and can determine what they believe to be credible. For example, the Responding Party can submit 50 letters from friends, colleagues and peers stating what a fantastic person they are, and SafeSport has no opportunity to ask this person if they ever saw anything inappropriate, if they know any of the witnesses, if they ever heard rumors or if they heard talk about unprofessional behavior. So, these may be credible, or they may not.
The arbitration is done by video conferencing and is live. The witnesses are under oath and their facial expressions, demeanor, body language, tone of voice, etc is seen by the arbitrator, Responding Party and their representative.
"An equal opportunity to provide unreliable evidence does not result in due process.
“I agree that it appears that both parties can be blindsided, but again equality in the lack of due process does not create due process.”
As stated before in this thread, due process is not a right allowed to you in order to be in club. You pay membership dues to be in the club. It does not violate a constitutional right of due process if the club decides you broke their rules. The club is not preventing you from making a living.
"You are correct that the Directors report is only entered into evidence if one party requests it. I would imagine that the vast majority of the time (if not essentially all the time) the Reporting Party will enter it into evidence since it supports their position.
The Responding Party is interested in admitting it into evidence (and was requested by them in some cases) because ALL their evidence is contained in the decision as well. And in some cases the SS/ Reporting Party may not care if it is admitted; their live testimony may be stronger than what is written in the Director’s decision.
"But once in evidence, what I have said above is true.”
states previously: The right to a decision only based on the evidence presented may be violated because the Decision of the Director in part 1 is taken to be evidence, but there is no requirement that all of the evidence the Director relied on be presented"
No it is not true. All the evidence the director relied on is contained in the Director’s decision. All someone needs to do is read it and they will have all the evidence the director had.
Thanks for all of your posts, FiSk123.
To OneTooMany and others posting along the same line:
Do not misunderstand. It’s not that I don’t understand what you’re saying. I do. I understand your arguments and your opinion. I simply don’t agree with you. Further explanation isn’t going to change my mind because I’ve already considered your arguments and rejected them.
The issues you are raising are not points of law in the sense that SafeSport policies violate some laws/rules laid down by some higher body, they are simply your opinion. Although I suppose your opinion might be that they do violate some law/rule, but at this point, that’s simply your opinion, too. Other people may share your opinion, but that doesn’t change the fact that it’s simply opinion.
There’s nothing wrong with expressing your opinion. I’m not suggesting that you should stop. All the rest of us are doing the same thing. All I’m saying is that I get the feeling from your posts that you may believe that if you could only explain this thing to us so we could understand, then we would agree with you. And that’s not the case, at least for me.
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