Safeguarding Vulnerable Parties in Arbitration Proceedings

By Catherine Pitre and Karen Bellehumeur

Overview

Introduction

Nature of Proceedings and Examples in UK sporting context

Procedural Context / Stages of a Safeguarding matter

Basic Principles relating to Victims

Assessing the Evidence

Strategies for Protecting Vulnerable Witnesses

Introduction

Catherine Pitre is a lawyer and the Head of Case Management at Sport Resolutions, an independent, not-for-profit, dispute resolution service for sport, based in the United Kingdom. Catherine has overall responsibility for Sport Resolutions’ case management function, at national and international level, and line management responsibility for its team. Catherine is a Board member of Women in Sports Law, and a mentor to uOttawa law students through its JurisMentor and Women’s Legal Mentorship programs. She has delivered training to sport-specific arbitral institutions and stakeholders in the UK and abroad, and has guest lectured for various Masters programs, including the FIFA Master & the ISDE Master in International Sports Law. Prior to joining Sport Resolutions in 2016, Catherine worked at the SDRCC and the Federal Court of Canada. She is a trained level 3 artistic gymnastics coach, and former gymnastics judge for Ontario.

Introduction

Karen Bellehumeur spent over twenty years as a Crown prosecutor in London, Ontario, specializing in cases of sexual violence and child abuse. Her law practice (Bellehumeur Law) now includes representing survivors of sexual abuse in human rights and criminal cases as well as taking on various roles in the area of safe sport. She is a member of the SDRCC safe sport advisory committee, victims’ counsel for a national sport organization, and sits on various national and provincial screening and disciplinary panels. She is also a member of the Ontario Independent Legal Advice for Survivors of Sexual Assault lawyers panel, and provides advice as part of the London Advocacy group reviewing London Police unfounded sexual assault cases. Additionally, Karen is a PhD Candidate at Western Faculty of Law, focusing on law reform for survivors of sexual violence. https://bellehumeurlaw.com

Nature of the ProceedingsNational Safeguarding Panel in UKInvestigationsRisk AssessmentsReviewsIndependent InvestigationsArbitrations

Procedural Context

Different approaches and perspectives

Disciplinary process – victim is a witness May be criminal investigation and charge Sport’s Code of Conduct different than Criminal Code May encompass more allegations Standard of proof differs Suspension may have been imposed Vulnerable victims may have already given statements

Procedural context cont’d

Tribunal’s role

Co-operation of parties

Balancing exercise

Confidentiality due to sensitive nature of proceedings

Prompt and appropriate investigations

Basic Principles Sexual offences affect victims in different ways

Emotional shutting down is a common response to chronic sexual or physical abuse

Recalling traumatic events can trigger overwhelming feelings

Prior victimization (to the incident in issue) can exacerbate a victim’s response

Safety and trust are issues for victims of trauma

Review of statements may require support

Testifying in a different room by CCTV can reduce stress and anxiety

Assessing the Evidence

Myths and stereotypes masked as ‘common sense.’ Inaccurate assumptions Reflected in societal perceptions Attributed to history of patriarchy Unconsciously applied when assessing credibility Rape culture – where sexual abuse is ignored,

legitimized, or blamed on the victim That culture impacts how victims are treated,

questioned, how their evidence is interpreted Likely responsible for perpetuating low conviction and

reporting rates

Examples of myths

What sexual abuse looks like:

Who is blamed:

How a victims should act afterward:

Perpetrators are strangers – Victims expected to avoid dangerous places

Most perpetrators are known to the victims (82%)

Real victims fight off their attacker – cry out for help Victims don’t fight a person they trust – also can experience

a freeze reaction

Myths cont’d Provocative clothing or flirty behaviour can imply consent Consent cannot be implied

Sexual abuse is an offence of passion – not that serious Sexual abuse is often related more to power and control

than passion

Women fabricate sexual assault our of regret or vindictiveness

Studies show that only 2 – 8 % of complainants lie – same as any other crime

Victims will tell someone right away – especially a parent Only 25 – 31% of children will report within the first year and

less than 10% of adults ever report

Myths cont’d

Victims will avoid contact with the perpetrator afterward and display anger toward him/her

Victims will show appropriate emotions when describing what happened

There are a wide range of psychological responses affecting how a survivor behaves affecting whether they report including: denial, shock, guilt, shame, embarrassment, grief, fear and feeling powerless

The Impact of Trauma

Trauma – an event that combines fear, horror or terror with actual or perceived lack of control

Causes an automatic brain response – beyond control

Impact of trauma cont’d

May cause victims to re-experience the trauma in their minds repeatedly resulting in Hyper-vigilance, fear, depression, anger, aggression, self-

destructive behaviour, feelings of isolation, poor self esteem, difficulty trusting others

Trauma can make complainants vulnerable and impair their ability to withstand examination –

The subject-matter is often the very cause of their trauma

The experience of testifying can cause re-traumatization

Understanding Childhood Sexual Abuse

Studies show that it gives rise to harm that lasts a lifetime:

Mental health Education Homelessness Physical health Legal problems Addiction Employment

How sexual abuse impacts children

Abuse in sport

2- 8% minor age athletes in Canada are victims of sexual abuse and harassment

98% of perpetrators were coaches, teachers or instructors

Coach-athlete dynamic gives rise to culture of unquestioning trust and power imbalance

Grooming often precedes abuse – gradual, escalating and difficult to recognize – involves athlete and gatekeeper

Grooming involves boundary violation and normalization of inappropriate conduct

Abuse in sport cont’d

Boundary violations are harmful – blurring lines of appropriate interaction with adults – makes young persons more vulnerable to future exploitation

Abusers find ways to make the victim feel complicit – this ensures that the victim will keep the secret

Once sexual abuse begins, the power imbalance combined with the victim’s self-blame and shame often results in a well-kept secret

Strategies for protecting vulnerable witnesses

Ensure they feel safe in the hearing environment.

Do not require them to tell their story over and over again.

Show compassion, courtesy and respect.

Try to understand and accommodate mental health issues – ie PTSD triggers.

Be sensitive to discrimination or oppression they have experienced including intersecting areas of race, gender, culture and ethnic background.

Strategies cont’d

Inform and prepare them for what to expect: Pre-hearing visit to hearing rooms The process and the role of cross-examination Special attention for children and vulnerable adults Identify decision-makers and tribunal staff Provide hearing timetable Rules about discussing testimony with other witnesses Notification about the decision when rendered Confidentiality of their testimony Public nature of the decision

Strategies cont’d

Empower them to make decisions and thereby have some control over the process

Do they wish to be accompanied by a friend or family member or other support person?

Do they wish to testify in a separate room to the respondent?

Strategies cont’d

Consider special arrangements for the hearing

Staggered arrivals of the parties to avoid contact Breakout rooms and allocated bathrooms of separate floors Testimony with respondent in different room (must be

accompanied by a representative – who can ask questions of the witness).

Decision drafting – leak prevention and protection of confidentiality – i.e. by anonymizing names using letters

Conclusion

The process matters to complainants!

A humane approach minimizes harm to vulnerable witnesses while ensuring a just result.

Thank You!