This article is about drawing focus to the danger of going too far when managing allegations relating to child protection. As sports lawyers we work across a number of areas of law, including matters relating to child protection in sport and our position that no child participating in sport should be a victim of abuse, is unwavering. While we’ve explored child protection in sport in previous articles, including minimising the risk of poor sideline behaviour, in this article, we wish to highlight careful management of allegations in circumstances where it is not certain that a person accused of an offence is guilty of an offence.
The Big Risk
Given the impact that abuse has on children throughout their lives, there is no doubt that zero tolerance is required. However, what can arise in the management of child abuse allegations can result in an overcorrection of sorts. That is, that individuals alleged to be responsible for child abuse, are treated in a way that amounts to them being treated as ‘guilty until proven otherwise’. Those who might defend the alleged abuser may also be subject to criticism.
When we look at historical cases of abuse in sport, we know that more should have been done. While the policies and processes are now in place, the resulting response to ensure the abuse of children doesn’t happen on our watch, however, can also lead to inappropriate treatment of the accused.
How representatives of sporting organisations respond to allegations of child abuse, under a Member Protection Policy or Child Safety Policy, must be managed with caution.
Context is Everything
As explored in our article on high performance coaching and child safety, the lines between what is acceptable coaching and what falls within the crimes of abuse, discrimination or harassment can sometimes be a very fine line.
Coaches for example, in certain levels of sport, may be dealing with people of varying ages and abilities. Some athletes or participants in sport, particularly young athletes, may have very different reasons for participating. Some children are involved because they are passionate about the sport and want to reach the highest level. Some may be involved because their parents are pushing them into it, or it is a requirement of their education. Other children might be participating in sport for the social element.
Given the varied reasons why children find themselves in sporting contexts, what might be acceptable in the context of high performance coaching (e.g. pushing an athlete to close to their limits in the quest for the best result) might be considered abuse or harassment in the context of a 5 year old beginner swimming class.
Physical contact might be unnecessary and prohibited when coaching an under 12’s netball team but might be essential when teaching beginner ballet classes and making sure participants are performing the correct movements without injuring themselves. Actions which might otherwise be considered abuse might also be permissible in the context of unruly and unsafe behaviour of children.
So while context is relevant, along with your Member Protection Policy or Child Safety Policy, balancing zero tolerance for child abuse with the careful management of allegations is essential.
Responding to Allegations
All individuals should be accorded natural justice under the law during an investigation process. This is necessary for good governance, and to ensure that a decision or sanction is not appealable. There should not be a presumption of guilt, although temporary actions may need to be taken during the investigation stage to ensure that children are safe. In some circumstances for example, it may be suitable to suspend the coach with pay or require them to be supervised at all times, until the investigation is complete.
Confidentiality is also essential during an investigation for both the alleged offender and the alleged victim/s. Where confidentiality has not been maintained, this creates additional risks for the sporting club or organisation that received the complaint.
Managing Allegations Against a Coach, Volunteer or Official
What happens when a coach, volunteer or official unintentionally acts in a manner that results in an accusation of child abuse being levelled at them?
An allegation can be soul-destroying, especially if the accused feels as though the sports club or organisation is assuming that the allegations are true. These days most matters are dealt with by Sports Integrity Australia (SIA), which can be an incredibly stressful and intimidating process.
We have seen coaches with complaints made against them by angry parents in situations where the coach has never had any previous allegations made against them. Coaches who have been working in the industry for many years and who have built up a first-class reputation over an extended period of time. Suddenly they are facing an allegation of child abuse as a result of conduct that may have previously not have been considered to constitute child abuse.
Even if they are ultimately cleared of wrongdoing, we know that the time spent waiting for a decision can be stressful for the accused. And, even if they are ultimately cleared, it may still be difficult to avoid some reputational damage if confidentiality isn’t maintained.
For these reasons, for anyone involved in managing allegations, it is vital to remember that you are dealing with human beings on both sides of any allegation. Human beings who will have all kinds of concerns, sensitivities and their own vulnerabilities. An accusation of wrongdoing, especially an unexpected one, will likely be devastating. It is important to take a balanced and objective approach, consider any applicable policies, and seek legal advice to ensure any interim decision making and actions undertaken will be appropriate.
Sports organisations have obligations relating to the health and safety that extend to employees and volunteers too.
In addition to this, consider:
What does the treatment of the accused show to others who might hold the same or another role in that organisation in the future?
The Subsequent Risks
When an alleged offender is found not guilty, and it is viewed that the individuals representing the club, organisation or association responded too harshly, were too quick to punish or accuse, or should have handled it differently, it can affect the willingness of others to be involved or connected to the club or organisation. This is regardless of whether it is a paid or volunteer position they are filling.
Where there has been an ‘overcorrection’ in their management of an allegation, the risk is that you may end up losing valuable assets for your sport, including those who provide enormous benefits to numerous children. While the benefits or contributions of one person never cancel out or condone clear misconduct, abuse, harassment or discrimination, the handling of allegations and impact on culture should be contemplated.
Questionable Handling of Allegations
Where it is found that the accused is not guilty and it can be proven that their treatment during the process was inappropriate, this can present the risk of a civil case. Particularly where sanctions are brought against the accused before the ruling, or reasonable efforts to keep the allegations confidential were not maintained.
If the accusation was public knowledge, and the individual sustained psychological injury, then they may be eligible for a Worker’s Compensation claim, another employment related claim, and potentially a defamation claim.
For representatives of organisations having to walk the delicate line of managing both parties to the allegation, while ensuring they must maintain an appropriate level of comfort to bring forward accusations, they must also ensure there is no risk of inappropriately and unfairly treating the alleged offender.
A Delicate Balance
We have acted on all sides of matters relating to child protection in sport and understand the gravity of these circumstances from all perspectives. We have helped coaches and administrators who have found themselves the subject of complaints of abuse, discrimination or harassment, with accusations from both children and adults. We have acted for athletes who have been subject to horrific abuse, discrimination and harassment. We have also conducted workplace investigations and provided advice to sporting organisations about the careful management of complaints, and subsequent actions.
It is very important that the alleged victims of abuse are given the opportunity to be heard and their complaints addressed. However, where the facts aren’t clear, and those involved in managing allegations are focused on only considering or fearing the worst, the risks can be great, in an entirely different capacity.
The safety of children is paramount. Nobody wants people within their sport that are harming children. These matters present difficult problems for all parties involved. Nobody wants to be in a situation where such accusations are made, however the handling of them is impactful on many levels.
Article by Alexandria Anthony
Related Articles: High Performance Training and Child Protection in Sport Coaching
Parents’ Sideline Behaviour at Sport | How to manage the risk at the sidelines
It’s Not Child’s Play: Sports Organisations and Child Safety Offences
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Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.
