Guest writer: Lisa Cloutier, Esq. & Douglas Fierberg, Esq.
Abuse or harassment can have devastating impacts on survivors, especially when committed by a trusted person such as a coach. If you have experienced physical or sexual abuse or harassment based on your gender identity or sexual orientation, it can be empowering to understand your legal options. When you’re dedicated to your sport and it’s such an important part of life, the prospect of pursuing a legal remedy can raise concerns about retaliation and the loss of sports opportunities, whether on a particular team or within the broader sport community. Retaliation is prohibited, and some of these options below offer confidentiality in all or parts of proceedings. Ensuring you are safeguarded within your sport even as you advocate for your rights and well-being is crucial.
For many, seeking the counsel of an attorney experienced in working with athletes on these emotional matters can help to clarify options and strategically choose a path that aligns with your situation and goals. What is right for you is an incredibly personal and sensitive decision.
Criminal charges
If you have experienced physical or sexual abuse, or certain types of harassment, you may wish to pursue criminal charges against the perpetrator. This process typically begins with the victim reporting to local police. In many areas, if you are reporting sexual abuse, you will be interviewed by a detective trained to work with victims of these crimes. Ultimately, a prosecutor will decide whether to prosecute the case, and that decision is often based upon the assessment of whether the claim can be proven beyond a reasonable doubt (a particularly high burden of proof relevant solely to criminal proceedings). The central remedy in criminal proceedings is the incarceration of the wrongdoer, and some states have special funds established to compensate victims of crime for financial losses resulting from the criminal misconduct.
One should consult local law to determine when criminal proceedings must be initiated under the applicable statute of limitations. Statutes of limitations require that survivors initiate criminal charges or civil proceedings (lawsuits) within a specific period after the abuse. These times are set by state law, which vary greatly from state to state. Some states have eliminated the statute of limitations for certain sex crimes.
The criminal process can potentially proceed simultaneously with other processes such as a civil lawsuit, SafeSport investigation, or Title IX proceeding.
Civil lawsuits
Many survivors choose to pursue a private civil lawsuit for money damages against the perpetrator, or in certain instances, against an entity or other individuals who contributed to harming the victim through their actions or failure to act (negligence). An award of damages is available in civil suits to compensate you for physical and mental injuries, medical expenses, lost income, emotional distress, other financial losses incurred due to the abuse, and pain and suffering. In some cases, punitive damages, aimed at punishing wrongdoers, are also available. So too, civil litigation can sometimes be used as leverage to compel an institution to make changes in protocols and policies necessary to protect others from harm.
While the civil lawsuit process can be lengthy, some cases settle with the agreement of all parties long before a trial, sometimes before a lawsuit is ever filed. Unlike the criminal process, which employs a beyond a reasonable doubt standard, civil lawsuits require only a preponderance of the evidence to hold the defendant liable. Another significant difference from criminal proceedings is that there is no prosecutor making the principal decisions: The survivor – along with her/his legal counsel – is in control of the central decisions, such as whether to file suit, settle, or go to trial. This can be very empowering for survivors as it is a pathway towards regaining power, control, agency, and accountability.
Statutes of limitations for filing civil claims are set by state law. In the wake of the #MeToo Movement, some states responded to courageous survivors coming forward by extending statutes of limitations or reopening “look back” periods for years-old cases that otherwise would be barred. These statutes are state-specific and should be consulted as soon as possible because once they expire, the possibility of filing a civil suit disappears. Legal issues related to civil lawsuits also vary from state to state. You may wish to consult an attorney with trauma-sensitive expertise in these areas to help you understand your options so you can decide about the legal process that is best for you.
SafeSport
In response to many courageous survivors coming forward to describe horrendous abuse committed by Larry Nasser, and the institutional failures that facilitated the continuation of that abuse for decades, Congress passed the Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017 (commonly known as the SafeSport Act). The SafeSport Act creates a legal framework for addressing sexual, physical, emotional abuse, hazing, harassment, and other misconduct in sports. The Act established the U.S. (United States) Center for SafeSport as the primary authority for creating policies and procedures for preventing and reporting misconduct, conducting investigations, and disciplining perpetrators. Under the SafeSport Act, adults who work with youth athletes are required to report suspected physical or sexual abuse to local authorities and the Center for SafeSport. More details about SafeSport, including conduct prohibited by the SafeSport Act, the scope of athletes, coaches, and others who work with athletes covered by the act, how to report misconduct, and the investigative process, will be the subject of another blog post.
Title IX
If you were abused or harassed by a coach, trainer, or other employee or student at any college or university, a public K-12 school, or, in some instances, a private K-12 school, you have the right to file a Title IX complaint with the educational institution. Title IX of the Education Amendments of 1972 requires schools to respond to sex-based discrimination and harassment, including sexual assault, by promptly investigating the allegations and conducting disciplinary proceedings. The Title IX Final Rule effective in 2024 also clarifies that Title IX prohibits discrimination against LGBTQI+ students, employees, and others, and requires schools to investigate these complaints and hold disciplinary hearings.
Every school is required to have a Title IX coordinator and Title IX policy that explains the specific procedures and options for reporting, investigation, and resolution of a complaint. This policy should be available on the school’s website. You are not required to have an attorney for this process, though some survivors find it helpful to have the guidance of an attorney. You are also permitted to have a non-attorney advisor help you with the proceedings, and some institutions offer the assistance of faculty during this process. Some schools even reimburse attorneys for helping survivors. Title IX proceedings initiated with an educational institution are entirely separate from the criminal, civil and SafeSport processes, though civil lawsuits filed in Court often contain allegations and claims that the requirements of Title IX apply and/or were violated. And these processes can be coordinated and proceed in unison.
Once you have made a Title IX report, schools are required to offer you supportive measures to restore or preserve your access to education and other school activities, such as school sports, and provide you with other support, during the school’s Title IX investigation and resolution process. In cases with serious allegations, a school may remove an accused student, coach, employee, or volunteer pending the outcome of the Title IX investigation. This also includes the power to issue “stay away” orders protecting survivors from ongoing harassment at school, in school-related activities, or in other circumstances within the jurisdiction of the school. The goal, among others, is to protect the survivor’s education opportunities and rights throughout the process and afterwards.
If the accused individual is found responsible, the school is required to impose appropriate disciplinary measures commensurate with the severity of the violation, including expulsion or termination of employment. In addition to disciplining the perpetrator after a finding of responsibility, a school is required to take other steps to remedy the effects of the sexual assault or other sex-based discrimination on the victim. This may include a wide range of academic and other remedies specific to the situation and needs of the survivor.
Disclaimer
The information in this blog post does not, and is not intended to, constitute legal advice, and should not be relied upon as such. It is intended only to provide general guidance and information to the reader. Because each of the topics above are governed and affected by numerous legal issues that are often state specific, you are advised to seek independent legal counsel licensed in your jurisdiction to obtain qualified legal advice pertaining to your particular circumstances.
