Editors note: This is the second of two stories investigating SafeSports process for handling athlete complaints of sexual abuse. The first story examined SafeSports investigation after Jennyfer Roberts reported she was raped. This story examines the appeal process, once the investigation by SafeSport was complete.
Jennyfer Roberts had been on edge for weeks.
On February 14, 2018, the U.S. Center for SafeSport, after a nearly year-long investigation, found that Pan American champion weight lifter Colin Burns had committed “non-consensual sexual acts” against Roberts, a rising star in the sport, while they were representing Team USA at a pre-Olympic event in Rio de Janeiro in April 2016. Burns was banned for 10 years for the non-consensual sexual contact and another two years for lying repeatedly to investigators.
Burns appealed the rulings and an arbitration hearing was scheduled.
A three-member panel made up of former federal judges would decide whether to uphold SafeSports decision that Burns had sexually assaulted Roberts in her hotel room while she was incapacitated by sleep and alcohol intoxication, or clear Burns and allow him to continue participating in the sport.
The arbitration panels ruling would be final. Under SafeSport rules, neither Roberts nor Burns could appeal the panels decision.
So on July 13, Roberts logged into her computer for a videoconference hearing that would decide the case.
“I was already on high anxiety,” Roberts recalled. But she told herself, “Just answer all their questions, be very respectful.”
Then Roberts was blindsided by a line of questioning by arbitrator Rosalyn Chapman.
“She was just like down to business. She said, Sorry to having to ask this in this way but were you a virgin?” Roberts recalled Chapman asking her about the night of the Rio incident.
“And then she kept going,” Roberts said.
“Have you ever performed oral sex?”
“Have you ever had anal sex?”
“I thought, What the hell? But I tried to remain calm and answer all their questions,” Roberts said. “It didnt feel right at all.”
A week later, Burns 10-year ban was lifted by the arbitration panel which ruled that SafeSport had not proved Burns had sexually assaulted Roberts by a preponderance of the evidence. While the arbitrators determined that Burns lied to investigators in three interviews they nevertheless reduced his suspension for lying from two years to 18 months.
Burns can resume competing and coaching at USA Weightlifting and U.S. Olympic Committee-sanctioned events on August 13.
A six-month Southern California News Group 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, raises serious questions about the USOC created and financed U.S. Center for SafeSports 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, reports, interviews and transcripts, reveal 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.
SafeSports determination that Roberts was sexually assaulted while she was incapacitated by alcohol consumption and sleep was “seriously undercut” by Frommes 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.
Questions raised about policy
While the SafeSport code has “no statute of limitations or time bar of any sort” the Burns case raises questions about what guidelines will be used to decide cases where the alleged incidents of sexual abuse or other misconduct took place prior to the center opening in 2017.
The documents in the Burns case show that the arbitration panel agreed with Burns that SafeSports policies, procedures and supplemental rules would apply to the investigation and arbitration hearing but that USA Weightliftings safe sport policies and code of conduct that were in place on April 11, 2016, the date of the alleged incident, would “govern the substantive standards of conduct in this matter.”
SafeSports Code for the U.S. Olympic and Paralympic Movement did not take effect until March 2017. The SafeSport code was used as the standard in regards to Burns lying, which took place between March and May 2017.
In ruling in favor of Burns the arbitration panel said there was nothing in USA Weightliftings by-laws and policies in April 2016 that defined non-consensual sexual contact or required consent.
“USAWs Policies do not define non-consensual sexual intercourse, or define the necessary standards for obtaining consent to particular activities, and as such, there is no standard that required both (Roberts) and (Burns) to obtain express verbal consent from one another for each particular sexual act, regardless of whether that would have been good policy or not,” the panel wrote in its decision. “There was simply no such policy requiring such actions at the time of the sexual encounter.”
In a lawsuit against Burns, USA Weightlifting and the USOC filed in Orange County Superior Court this month, attorneys for Roberts allege that Burns raped and sodomized her. Burns “violently raped her while she was asleep,” according to the suit.
Burns declined to be interviewed when contacted by SCNG.
“I have been advised that the SafeSport rules are such that cases are entirely confidential, and anyone involved in a case generally cannot speak without violating those rules,” Burns said in an email. “I therefore cannot comment on any SafeSport matter. I also note that I reserve any rights to protect my reputation regarding any false statements published about me.”
An attorney for Burns issued a similar statement to SCNG.
SafeSport officials did not respond to multiple requests for comment. A USOC spokesman said the organization was not aware of the lawsuit and did not have any comment.
SCNGs policy is to not name the victims of sex crimes. Roberts, however, agreed to be identified.
A gulf between investigation and arbitration panels decision
The documents also underscore the wide disparity between SafeSports original ruling and the arbitration panels decision.
“Its like there were two cases but theyre the same case,” 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.
SafeSport ruled that Burns began having sexual intercourse with Roberts “without her consent and while she was incapacitated — by her sleep and intoxication — of consenting.”
Safe Sport senior investigator Kathleen Smith found that there was “no credible evidence in the record that (Roberts) consente
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d to the subsequent intercourse that occurred” or “evidence demonstrating that (Roberts) communicated that she wanted to engage in each of the sexual acts.”
Yet the arbitration panel in its decision wrote that the Center for SafeSport “has not established that (Burns) engaged in non-consensual sexual acts with (Roberts).”
The arbitrators also found that “the Center has failed to prove by a preponderance of the evidence that (Roberts) was incapacitated by alcohol at the time of the sexual encounter.”
The difference in the two rulings and similar recent reversals in the cases of two-time Olympic taekwondo champion Steven Lopez and his brother Jean, a longtime U.S. national team coach, both originally banned for alleged sexual assaults, highlight the need for a review of SafeSport cases and procedures, according to Starr.
“Obviously theres a disconnect here,” Starr said referring to the Burns case. “Theres such a big variance between the (original) SafeSport outcome and the decision by the (arbitration) panel. Theyre shockingly different and I think this shows that there needs to be more review of these cases.
“The Center got it right. But the fact that it got appealed and overturned with such a complete reversal, its pretty clear that its time to re-evaluate these cases.”
Survivors, Starr continued “are not fairly represented in the system and if you dont have that, it sets the tone that it isnt safe. I mean its called the Center for SafeSport and there wasnt anything safe there.”
SafeSports credibility and viability are further undermined by allowing survivors of sexual assault to be questioned about their sexual histories, according to athlete safety advocates, law school professors and sexual assault experts.
Chapman did not respond to inquiries from SCNG about her questioning Roberts about the athletes sexual history.
“It sends a really chilling message to victims,” Michele Landis Dauber, a Stanford Law School professor, said of the arbitrators questioning of Roberts. “It says if you report sexual assault or sexual abuse, your past behavior can be opened up and interrogated. Its classic slut-shaming and the reason why its not allowed” in criminal cases.
Said Laura Palumbo, communications director at the National Sexual Violence Research Center, “Its still really alarming when we think about, even in the era of MeToo, we think if you come forward with a story, a credible story and to have your sexual history used against you.”
Palumbo echoed other survivors advocates and safe sport experts in expressing concern that the admissibility of questions about a survivors sexual history and that the reversal of SafeSport ruling will discourage future survivors from coming forward.
“I think it sends a very strong message to victims especially when a survivor has such a credible story and risked so much coming forward and is still met with so much dismissal,” Palumbo said. “Even if there is an outcome where someone is going to be held accountable and if that is overturned or reversed it sends this message that these reports arent taken seriously, that there is little chance of justice and that you have a lot more to lose than to gain coming forward.
“And for most people coming forward, the only thing theyre seeking in coming forward is ensuring that this person cant harm others, and that, for many survivors, continues to be enough of a motivation to go through the process of reporting, but it clearly does send a very damaging message and I think that is even more true for younger people who might be thinking that their story — like if this story wasnt believed, thinking that Roberts had a lot information confirming the validity of her story and even she didnt get believed because she was drinking. So who is going to believe me?”
The arbitration panel overruled SafeSports objections to the admissibility of the testimony and/or statements by Fromme and two other witnesses at the appeals hearing.
They “allowed testimony from people with no relevant information — to attack my character,” Roberts said in an email.
In addition to not offering a rebuttal witness to Fromme, SafeSport did not call on Smith, the centers senior investigator and the point person on the Burns investigation, to testify during the arbitration hearing.
“We didnt bring Kathleen in which I thought was a mistake,” Roberts said referring to SafeSports decision.
Still Joe Zonies, SafeSports attorney, Roberts said, “felt pretty confident this whole time. He didnt seem rattled. He was like OK, no problem. He seemed very confident that these arbitrators would come to the same conclusion that we did and I think he was just too relaxed.”
Zonies and Smith did not respond to requests for comment.
The last night in Rio
The panel was told how on April 10, 2016, the U.S. lifters celebrated their last day in Rio with a trip to the beach and then around 6 p.m. dinner at a steakhouse near the citys Copacabana Beach. It was at the steakhouse that the U.S. athletes began drinking caipirinhas, a traditional Brazilian drink made with a rum-like liquor. Roberts said in interviews with SafeSport and SCNG she had “five or six” caipirinhas at the restaurant.
Eventually, the group returned to their hotel where Travis Cooper, a U.S. lifter, testified during the appeals process that Roberts invited him and Burns to her room. Cooper declined and headed to a restaurant area near the hotel lobby.
Roberts and Burns joined athletes from other countries in drinking beers at the hotel. Roberts returned to her room alone. Her roommate on the trip was Vanessa McCoy, a U.S. lifter. But when Roberts returned to the room that night Stephanie Lemmen, another U.S. lifter, was in McCoys bed. Lemmen had gotten sick at the restaurant acknowledging later that she “did not handle (her) alcohol well.” McCoy spent the night in the room of Cogen Nelson, her coach and boyfriend.
At 12:34 a.m. Roberts received a Facebook message from Bo Sandoval, Burns coach who was also on the trip.
“Where are you guys?” Sandoval asked.
At 12:59 a.m. Roberts responded.
“in my room”
Sandoval wrote back at 1:21 a.m.
And then at 2:27 a.m. “Jenn, are you awake?”
Roberts said she did not see the final texts until the next morning.
Lemmen told Safe Sport that “at some point in the night I wake up, check to see if Jen is in her bed and I remember seeing her asleep.”
Sometime between 2 and 3 a.m. Burns knocked on the hotel room door. Lemmen answered the door and said she wanted to return to her room. Burns volunteered to walk her back.
A few minutes later Roberts was jarred awake, she said. Burns was having sex with her, she said.
“It was painful,” she said. “I remember crying out in pain and he said, Be quiet and take it. I knew he wouldnt stop until he was done.
“…He was going to continue, but I couldnt handle it anymore.”
When Burns was done, Roberts told Williams and SafeSport investigators, “He put his clothes on and said, I was never here and left.”
(Attorneys for Roberts also allege in the lawsuit that Burns said “be quiet” and “take it” during the alleged sexual assault and “I was never here” as he left.)
Burns said Roberts woke up when he was talking to Lemmen and signaled to him to come back to the room after walking Lemmen to her room. He said when he returned he put his hand on Roberts shoulder, according to SafeSport documents. She then reached up, pulled him toward her and began kissing him, Burns said according to SafeSport documents.
That morning Roberts woke up to find her world in disarray.
“I wanted to pretend it didnt happen,” Roberts said.
Pretending became harder when Roberts found Burns ball cap amid the rooms out of place furniture that morning.
Around 9 a.m. that morning Roberts joined her U.S. teammates in the hotel lobby. Lemmen and Burns were both there.
Lemmen said she left Roberts room around “3 or 4 a.m. Colin knocked on the door” and walked her back to her room, according to Roberts recounting of the conversation in a SafeSport investigator notes from a July 18, 2017 interview with Roberts.
“Stephanie then said actually thats kind of weird,” Roberts told the investigator.
Burns told the group about drinking “buckets of beer” with the Chilean team before returning to his room where he said he “wrote a (training) program for a client,” Roberts told Smith.
Burns also said he lost his ball cap, according to Smiths notes.
“I found it in my room this morning,” Roberts told him, according to the notes.
“Thats weird,” Burns replied, according to the notes. “How the hell did that happen?”
“To Jennyfer,” Smith wrote in a report based on an interview with Roberts, “Colin sounded so convincing about not knowing how his hat got in the room that she started to doubt what she remembered the night before.”
Those doubts didnt last long.
“As I boarded the plane home (later that day),” Roberts wrote in an email to USA Weightlifting associate executive director Lance Williams, “I kept squeezing my arms against my breasts to feel the pain and remind myself that yes, that did happen last night, but I continued to pretend everything was OK, because I was also still processing (I still am).”
Roberts told SafeSport investigators she had “no memory” of Burns entering the room when he spoke to Lemmen and was “pretty positive she was passed out asleep.” Lemmen did not recall observing Roberts from the time she began speaking with Burns to the time she left the room. Burns told Safe Sport he did not recall “if the door” to Roberts room “closed all the way” when he left with Lemmen “or if (he) didnt close it.” When he returned, Burns said, “the door was propped open but nothing was holding it.”
SafeSport found Burns claim that Roberts asked him to return to the room after escorting Lemmen “not credible.” The center also determined Burns “ensured” that Roberts hotel room would be open so he could re-enter the room “without any express or implied invitation.”
Testimony from Fromme was key to appeal
The arbitration panel, however, “determined that based on a preponderance of the evidence, the Center has not established that (Burns) engaged in non-consensual sex acts with (Roberts), in violation of USA Weightliftings Policies in effect as of April 11, 2016.”
But it was Frommes testimony on Burns behalf that the arbitration panel cited repeatedly in their decision.
Frommes theory that individuals in alcohol-induced blackouts are still capable of consenting to sex but have no memory of it has made her a go-to expert witness for defense attorneys in sexual assault cases involving alcohol in recent years.
“I returned from Seattle on the 24th; another huge acquittal on an alcohol-related sexual assault. This, even after the accused indicated he raped her during a 4-hour recorded statement to police,” Fromme wrote in a January 26, 2016 email to Michael Armstrong, an attorney for Brock Turner, a former Stanford swimmer who at the time was awaiting trial on three felony sexual assault charges including attempted rape. “
Fromme has testified in at least 32 cases, charging as much as $350 per hour with a retainer as high as $8,000 per case and sometimes receiving $10,000 in compensation for a single case, according to documents in the Turner case. Roberts said that during the arbitration hearing it was revealed that Fromme was paid $6,400 to testify in the Burns case.
She testified for the defense in a high profile 2013 case in which players in Steubenville, Ohios renown high school football program were accused of sexually assaulting and videotaping a 16-old-girl incapacitated by alcohol. That year she also testified on behalf of three U.S. Naval Academy football players sexually assaulting a woman incapacitated by alcohol at an off-campus party at a “football house.”
Fromme also testified for Turner.
“I just returned from ten days of trail (sic) in DC for sexual assault, bodily harm and kidnapping (he locked the door when he left),” Fromme wrote Armstrong in a Jan. 19, 2016 email. “The jury deliberated for 1.5 days but returned not guilty verdict.
“Lets hope for comparable outcome for your client.”
“Its pretty disingenuous of her, this willingness to say whatever is asked of her,” said Dauber, the Stanford law school professor.
Testimony in Stanford case raised professors profile
The Turner case gained national attention when Santa Clara County Superior Court Judge Aaron Persky sentenced Turner, who was convicted on all three charges, to six months in the county jail and three years probation. Turner served half of the jail sentence. The decision led to nationwide outrage directed at both Turner and Persky, who lost his spot on the bench in a June 2018 recall election. Dauber was one of the leaders of the recall movement.
But the case further raised Frommes profile, something that was not appreciated by some of her fellow faculty members back in Austin.
“I am embarrassed to be a colleague of Kim Frommes @UT Austin…Clinical psychologists should not be #rapeapologists,” Snehal Shingavi, a Texas English professor wrote on his twitter account.
“I dont know how shes sleeping at night,” Starr, a former All-American swimmer at Texas, said of Fromme.
Fromme declined to comment for this article.
“It is my understanding that all parties agreed that this matter would be strictly confidential,” Fromme said in an email. “Consequently I am unable to comment.”
Turner was arrested after two cyclists, out on a late night ride, spotted him on top of an unconscious woman on the ground behind a garbage dumpster outside a Stanford fraternity after midnight. He was thrusting himself into her. Her panties were on the ground, her dress hiked up above her waist. Her hands and elbows were bloodied. Her blood alcohol content at 1 a.m was above .24 (three times the legalRead More