What You Need To Know To Talk About Sports This Week

23 Mar 19
The Uncanny Fox

Dinosaurs and Ninjas! It’s a Reese’s Cup of awesome this week as two Ranger teams join forces to battle both the least intimidating and most intimidating villains of the Disney Era.

22 Mar 19
Teenage Struggles

Hello, dearest friends! It’s been almost a month since I last wrote a blog post. Man. Lots have been going on in my life since I last checked in, on February 26. I took my last final exam on Wednesday and have since been enjoying the start of spring break! This past quarter has been […]

22 Mar 19
UPROXX

The quarterfinals of the 2019 New Japan Cup included Chaos-on-Chaos warfare, new title challenges, and more.

22 Mar 19
Divorced 'N Kicking

I never really lost any connection with my kids during my divorce. But things did change a lot on how I spent time with them during those stressful months of my life. Even after the divorce, when we moved out and started a new chapter of our lives, it took me solid few months to […]

22 Mar 19
A Series of Tom Fooleries

I have an alter ego. She comes out under the influence of hard liquor. Or soft liquor. Or when someone’s wronged her. Or when she’s listening to Earth Wind and Fire and having herself a good ‘ol time. My alter ego came out this past weekend…as well as the weekend before that. “What should we […]

22 Mar 19
TIME FOR RETIREMENT

  Follow my blog with Bloglovin One of the hardest adjustments to make when retiring is doing things you want to do.  You may not even know what that is, after doing things for others for most of your life.  It’s weird to work so hard and so long for the opportunity to do what […]

22 Mar 19
Thrive Global
Keep learning and adapting as a leader. You’ll never know everything and there will always be new situations and experiences that shape your skills. You can’t always do things like they used to be done, so embrace change and evolution. As a part of my series about “Life and Leadership Lessons Learned In The Military”, I had the pleasure of interviewing Dan McCall, Military Candidate Team Lead for Lucas Group. Experience can’t be taught and it can’t be given. It must be earned. Having served as a Battery Commander in the 82nd Airborne Division in both Afghanistan and Iraq, Dan McCall’s badge of experience has been earned through unrelenting commitment, personal understanding, and tireless efforts. Today he serves as a Managing Partner for Lucas Group’s Military Transition Division, providing knowledgeable and thoughtful career advisement and placement services to junior officers separating from the military and entering the civilian workforce. Dan understands first-hand that U.S. junior and noncommissioned military officers command a cloth of experiences that weave an impressive pattern of skill, leadership, education, and career potential. His personal knowledge of and dedication to the military and its soldiers enables him to provide unmatched career results to every military candidate with whom he serves. In addition to working with JMOs, Dan delivers premier recruitment service to many veteran officers who have corporate backgrounds and are looking to make a step forward in their careers. As Military Candidate Team Lead for Lucas Group, Dan is squarely focused on the unique needs and goals of his candidates. He is committed to truly listening and learning about what’s important for their future. He thoughtfully considers each of his candidates individually, identifying the specific job opportunities that will lead to their continued success. Dan and his team are experts at helping officers translate their military skills and leadership experiences into valuable, sought-after qualities in the corporate world. As Lucas Group’s Midwest Conference Coordinator, he organizes and delivers unmatched hiring opportunities to Lucas Group candidates, and his achievements are written in the stories of every JMO he has helped launch into a rewarding career. A distance runner on his off-time, Dan enjoys looking forward, motivated by the civilian career prospects and business opportunities he knows are out there for today’s military officers. He believes that achievement is on every horizon, and his moving finish line is the placement of each military candidate into a career position that launches continued success. Dan is a graduate of University of Florida, where he earned a B.S. in Health Science and continues to welcome every opportunity to cheer on the Gators. Thank you so much for doing this with us! Can you tell us a bit about your childhood “backstory”? My childhood hero was always my Papaw — he was an Army Ranger in WWII and a former POW. After the war, he came to Florida and met my nana, who was working for the USO. They were part of the “Greatest Generation” and started a life there with three kids in South Florida. He worked in commercial construction and my dad followed in his footsteps as a carpenter and contractor. It was Papaw who sparked my interest in the military. I was able to go with him to a few of his Army Ranger Reunion events around the country and I was fascinated by their stories. He would later encourage me to consider the Army, but to go the officer route. So in high school, I joined the junior ROTC program and discovered I enjoyed being in a leadership position. Because I was both a good student and athlete, I was lucky enough to receive an ROTC scholarship to attend the University of Florida. After failing to make the football team at UF as a walk-on, I poured myself into the ROTC program and the physical training and competitions it offered. After four years, I earned my degree and was commissioned as a second lieutenant in the Army. And what are you doing today? Can you share a story that exemplifies the unique work that you are doing? After eight years of active duty service in the Army, I made the decision to leave the service and start a new career. I had some friends who had gone into medical sales and I thought it would be a good fit for me as well, but I really struggled to get interviews and when I did, they didn’t go as well as I hoped. Then one day, I got this letter in the mail about getting career help from a recruiting firm. I didn’t know if it would get me anywhere, but I filled out the form and a week later, I got an email from a Lucas Group recruiter asking to meet with me. We had a great connection, as we had both been in the 82nd Airborne Division at the same time and knew some of the same people. Working with him changed my whole perspective, as he coached me back into having confidence during my career search. Later, I attended a Lucas Group Military Hiring Conference and had several interviews with medical companies, but by then I had changed my mind and wanted to help coach others as a recruiter at Lucas Group. Can you tell us a bit about your military background? I was very fortunate to be part of the 101st and 82nd Airborne Divisions. These two divisions have an incredible history and it was an honor to lead and command during combat operations in Afghanistan and Iraq, but the Army job I enjoyed the most was serving as an Observer Controller at the Joint Readiness Training Center. The motto there is “Coach, Teach, and Mentor.” We were responsible for facilitating training and rehearsal exercises for units getting ready to deploy to Iraq, so it was incredibly rewarding helping others prepare for such critical missions. Can you share the most interesting story that you experienced during your military career? What “take away” did you learn from that story? A story I like to share is from my early experience at the training center. We had just completed an intensive two-day, situational training exercise with a platoon and it was time for the After Action Review (AAR). This was supposed to be an hour-long session with the platoon and my team of evaluators, but it was my job to facilitate the discussion. I had just come from battery command and I pretty much took the entire hour to tell this platoon what they needed to do to fix the areas we identified as problems. Afterwards, I felt great about it and thought I had given them all of the advice and instruction they needed to improve. My boss, who was watching by video from another building, found me and asked how I thought the review had gone. I told him why I thought it went well and he proceeded to tell me it was the worst AAR he had ever seen. My heart sank as he explained it was my job to facilitate the discussion, not lecture. If the platoon was going to improve, they had to identify the failures and commit to making the necessary changes themselves. I learned a great deal from this boss, mostly through the techniques he showed me for how to really influence others by asking questions and getting them to think for themselves. I’m interested in fleshing out what a hero is. Did you experience or hear about a story of heroism, during your military experience? Can you share that story with us? Feel free to be as elaborate as you’d like. I can’t ever recall thinking of anyone as a hero during my military service, but a few years later around the time of the surge and counter insurgency effort, I remember hearing a story from candidates at a hiring conference and truly thought it was heroic. They were discussing how they had been assigned to a village in Iraq and were responsible for training an army and police force. Their biggest challenge was learning how to relate to the Iraqi leaders to get them to actively participate in the training. One of the candidates said he had to learn to smoke a cigarette and drink tea before he could talk tactics. The other mentioned how he had to learn to take off his helmet and body armor to lounge or relax before any serious conversation could take place. These young, twentysomething leaders had to make themselves vulnerable in a dangerous environment to accomplish their mission. I walked away from that conversation with an incredible respect for these men and fully believe they represent the most important military leaders our country has seen since “The Greatest Generation.” Based on your military experience, can you share with our readers 5 Leadership or Life Lessons that you learned from your experience”? (Please share a story or example for each.) The military taught me the definition of leadership was to influence others to accomplish a common goal, despite obstacles you may encounter. Based on that belief, here are 5 Life Lessons I learned from my experience. Different people are motivated by different things. As a new platoon leader, I quickly learned that what was important to me was not going to be the same for the other soldiers and leaders in my unit. If I was going to be effective at leading them, I would have to learn their stories and find out what their priorities were. I could then explain how achieving our common goal would benefit their personal situation.You don’t always know the best way to accomplish something, which is something I still struggle with today. I’m very analytical and I enjoy thinking of solutions to problems, but I don’t always like to involve others in this process. When I look back on my early actions as a leader, I think about how they might have turned out differently if I had involved others in the decision-making process.You care about what you are willing to inspect. Being a leader requires you to be responsible for everything, but you have to delegate authority. Delegating does not remove you from being responsible, so I learned how to do accountability checks along the way. I would explain that I trusted them enough to share authority, but would suggest a lack of concern if I did not check on them to make sure tasks were fulfilled.You are going to run into problems, so try to anticipate them and rehearse the response. I had the privilege to work with amazing staffs during my career and the training exercises we went through taught me a great deal about how to plan for the unexpected.You have to be confident if you want to positively influence the people around you. I learned how my body language and demeanor made a significant difference in how I was perceived in the moment. If soldiers could visibly see how I was feeling, they would often reflect whatever I was projecting to them. Do you think your time in the military helped prepare you for business? Can you explain? Maybe. I think our past experiences can always help prepare us for what’s next, but I don’t believe military experience translates to business in all cases. For most military personnel, they’ve shown a willingness to serve something bigger than themselves, so working in government or other service-related industries are obvious destinations. However, I do think serving in leadership roles in the military gives you a leg up for certain managerial roles in business, you just have to find the right ones. As you know, some people are scarred for life by their experience in the military. How did you struggle after your deployment was over? What have you done to adjust and thrive in civilian life that others may want to emulate? I’m fortunate to have not experienced anything I would consider scarring, but life after the military is an adjustment for anyone. In the military, you are part of an organization that puts a high value on service of something bigger than yourself and comradery among your fellow soldiers. I’ve found a similar feeling in my career at Lucas Group, but I also became heavily involved in my church and other organizations to help fill that void. Are you working on any exciting new projects now? How do you think that will help people? I’m always looking for veteran groups to become involved with and participate in socially. I find that as a recruiter, people are usually interested in talking to me about their career options and to keep an eye out for them. What advice would you give to other leaders to help their team to thrive? Keep learning and adapting as a leader. You’ll never know everything and there will always be new situations and experiences that shape your skills. You can’t always do things like they used to be done, so embrace change and evolution. What advice would you give to other leaders about the best way to manage a large team? I personally don’t believe anyone is truly capable of leading a large team. I agree with the 3–5 person principle, where you invest heavily in those 3–5 other people and they do the same to have an effective team. None of us are able to achieve success without some help along the way. Is there a particular person who you are grateful towards who helped get you to where you are? Can you share a story about that? There are too many mentors to count, but I’ve always believed that we are all trying to find our way through this life and everyone needs help along the way. At the same time, we need to be available to help others. How have you used your success to bring goodness to the world? I’d like to think my role as a recruiter has helped me serve the greater good, especially when I help individuals find great jobs that will lead to success for them and their families. You are a person of great influence. If you could inspire a movement that would bring the most amount of good to the most amount of people, what would that be? You never know what your idea can trigger. 🙂 Whatever you are trying to do, don’t go at it alone. Find a coach, find a mentor, read a book, listen to a podcast or ask someone you trust for advice. Can you please give us your favorite “Life Lesson Quote”? Can you share how that was relevant to you in your life? “If you want to go fast, go alone. If you want to go far, go with someone else.” I’ve been married for 23 years. I’m thankful God gave me a wife and partner to help me through life and that she has been willing to put up with me and all my imperfections. Some of the biggest names in Business, VC funding, Sports, and Entertainment read this column. Is there a person in the world, or in the US with whom you would love to have a private breakfast or lunch with, and why? He or she might just see this if we tag them 🙂 Ok, so I’m still big into fitness, and a few years ago I started doing the P90X series of video workouts. I really enjoy plugging my headphones in and working out with Tony Horton, so if Tony ever reads this and wants to come workout with me, I can give my wireless earbuds a rest ☺. Thank you so much for these amazing insights. This was truly uplifting.
22 Mar 19
Daily News
Editor’s note: This is the second of two stories investigating SafeSport’s process for handling athlete complaints of sexual abuse. The first story examined SafeSport’s 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 SafeSport’s 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 panel’s ruling would be final. Under SafeSport rules, neither Roberts nor Burns could appeal the panel’s 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 didn’t feel right at all.” Ban overturned 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 SafeSport’s policies and procedures, the arbitration process and SafeSport officials’ performance and decision making both during their investigation and arbitration. RELATED: Team USA weightlifter Jennyfer Robert reported being raped, but SafeSport process only added to her anxiety 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. SafeSport’s determination that Roberts was sexually assaulted while she was incapacitated by alcohol consumption and sleep was “seriously undercut” by Fromme’s 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 SafeSport’s policies, procedures and supplemental rules would apply to the investigation and arbitration hearing but that USA Weightlifting’s 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.” SafeSport’s 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 Weightlifting’s by-laws and policies in April 2016 that defined non-consensual sexual contact or required consent. “USAW’s 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. SCNG’s policy is to not name the victims of sex crimes. Roberts, however, agreed to be identified. A gulf between investigation and arbitration panel’s decision The documents also underscore the wide disparity between SafeSport’s original ruling and the arbitration panel’s decision. “It’s like there were two cases but they’re 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[cq comment=”The following content will display as an info box.”] Related links Ban of Mission Viejo weightlifter Colin Burns for non-consensual sexual contact during Team USA trip was overturned Team USA weightlifter Jennyfer Roberts reported being raped, but SafeSport process only added to her anxiety Survivors, U.S. Center for Safe Sport clash over Jean Lopez reinstatement Athletes who survived abuse join together as advocates Mark Schubert is a legend for making US swimmers champions, but did he fail when they needed him most? [cq comment=”This is the end of the info box.”] 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 there’s a disconnect here,” Starr said referring to the Burns case. “There’s such a big variance between the (original) SafeSport outcome and the decision by the (arbitration) panel. They’re 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, it’s pretty clear that it’s time to re-evaluate these cases.”   Survivors, Starr continued “are not fairly represented in the system and if you don’t have that, it sets the tone that it isn’t safe. I mean it’s called the Center for SafeSport and there wasn’t anything safe there.” SafeSport’s 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 athlete’s sexual history. “It sends a really chilling message to victims,” Michele Landis Dauber, a Stanford Law School professor, said of the arbitrator’s questioning of Roberts. “It says if you report sexual assault or sexual abuse, your past behavior can be opened up and interrogated. It’s classic slut-shaming and the reason why it’s not allowed” in criminal cases. Said Laura Palumbo, communications director at the National Sexual Violence Research Center, “It’s 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 survivor’s 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 aren’t 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 they’re seeking in coming forward is ensuring that this person can’t 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 wasn’t believed, thinking that Roberts had a lot information confirming the validity of her story and even she didn’t get believed because she was drinking. So who is going to believe me?” The arbitration panel overruled SafeSport’s 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 center’s senior investigator and the point person on the Burns investigation, to testify during the arbitration hearing. “We didn’t bring Kathleen in which I thought was a mistake,” Roberts said referring to SafeSport’s decision. Still Joe Zonies, SafeSport’s attorney, Roberts said, “felt pretty confident this whole time. He didn’t 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. RIO DE JANEIRO, BRAZIL – APRIL 10: Colin Thomas Burns of the United States competes in the men’s 94kg weightlifting final of the South American Weightlifting Championship as a test event for the Rio 2016 Olympic Games at the Olympic Park’s Carioca Arena 1 on April 10, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) 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 city’s 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 McCoy’s 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. “Asleep” “in my room” Sandoval wrote back at 1:21 a.m. “What???????” 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 wouldn’t stop until he was done. “…He was going to continue, but I couldn’t 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 didn’t happen,” Roberts said. Pretending became harder when Roberts found Burns’ ball cap amid the room’s 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 that’s 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 Smith’s notes. “I found it in my room this morning,” Roberts told him, according to the notes. “That’s 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 didn’t 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) didn’t 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 Weightlifting’s Policies in effect as of April 11, 2016.” But it was Fromme’s testimony on Burns’ behalf that the arbitration panel cited repeatedly in their decision. Defense witness Kim Fromme testifies in the rape trial against two juveniles in Steubenville, Ohio. Fromme has testified in a number of high profile cases in defense of young men accused of rape where alcohol was involved. (AP Photo/Keith Srakocic, Pool) Fromme’s 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, Ohio’s 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. “Let’s hope for comparable outcome for your client.” “It’s 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 professor’s 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 Fromme’s 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 Fromme’s @UT Austin…Clinical psychologists should not be #rapeapologists,” Snehal Shingavi, a Texas English professor wrote on his twitter account. “I don’t know how she’s 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 legal limit for driving in California). She woke up at 4:15 a.m., three hours after the attack, in a local hospital with no memory of how she got there. In the Burns and Turner cases, Fromme testified that individuals in an alcohol-induced blackout are in a period of amnesia where they are fully conscious and capable of making short-term decisions such as consenting to sex as well as performing tasks like driving, but have no recollection of the period because they are unable to store long-term memory. Blackouts are not the same as passing out and persons can be in a blackout without exhibiting signs of incapacitation, Fromme said. “Her testimony was clearly intended to cast doubt on the facts,” Dauber said referring to the Turner case. “It raised doubts about Kim Fromme. It raised significant doubts for me about her willingness to testify in cases where the evidence does not support her theories.” Dauber’s point was underscored by an email from Fromme to Armstrong, Turner’s defense attorney. Under California law, attorneys are required to share with opposing counsel expected statements, opinions that expert witnesses will provide at trial. An attorney for Turner asked Fromme if the firm could use her written direct examination from a previous case to meet this requirement. “Mike, I think it would be a bad idea to give the DA even a generic version of the direct I wrote for US v Andrews,” Fromme wrote Armstrong. “It would be akin to sharing our entire poker hand in advance of placing our bets.” In the Burns’ case, Fromme used an algorithm based on evidence from the case to determine Roberts’ likely blood alcohol content at the time of the sexual encounter in Rio. “The expert witness never talked to me,” Roberts said Fromme “opined that (Roberts) experienced alcohol-induced blackouts on the night of the encounter with (Burns), and that a blackout would not necessarily impact (Roberts’) ability to consent to sex,” according to the arbitration panel decision document. Fromme testified that to be incapacitated by alcohol requires a blood alcohol content of .30. She told the panel “that, based on her review of the evidence (Roberts) was not overtly intoxicated at the time of the sexual encounter,” the decision document said. Roberts recalled a conversation she had with Smith, SafeSport’s senior investigator, after Fromme’s testimony. “I remember (Smith) saying how ridiculous it was to say I was drunk enough to have memory lapses but not drunk enough for a man to know he shouldn’t try to have sex with me,” Roberts said in an email. “Also, I was sleeping. I know Kathleen was upset they kept coming up with ‘new evidence’ as we got closer to the arbitration.” Yet SafeSport provided “no expert evidence to counter this evidence” by Fromme, the arbitration panel wrote in their decision. A review of Fromme’s testimony in the Turner case, however, offered several potential lines of rebuttal for SafeSport. Fromme while being questioned by a prosecutor in the Turner case acknowledged that  “I’m not a sleep expert.” She also said she had not done any research herself to verify the .30 blood alcohol content she has cited in multiple cases as the standard for being incapacitated. “I’m familiar with it through the literature,” Fromme said. “So lots of those are based on — composites of studies are based on, you know, hospital reports, et cetera,” Fromme continued. “So can you elaborate on that?” a prosecutor asked Fromme “I can’t,” she said. She was asked if she was familiar with the specifics of the composite studies or the hospital reports? “I’m not,” Fromme said. She also acknowledged “there are certainly individual differences and exceptions” to the .30 standard. “It seems very oversimplified especially when we think about the fact that for every individual your level of alcohol tolerance tends to fluctuate,” Palumbo said referring to the .30 blood alcohol standard. “I can imagine these individuals as athletes depending on how hard they were working out, how much food they’ve eaten, whether or not they’re properly hydrated all of that is going to be impacting how much they’re affected by alcohol. “I think the bigger challenge of course is we’re living in a society where there’s more of a focus and more interest and attention to whether we can measure intoxication to the point that someone may have arguably agreed to this sexual attraction versus keeping actually caring about the state of their sexual partners and wanting them to be a participant in the experience and not just trying to determine you can safely get someone and still legally have sex with them.” Jennyfer Roberts competes in the women’s weightlifting competition as a test event for 2016 Rio Olympics at the Olympic Park on April 8, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) Consent during blackout? In testifying in cases, Fromme has frequently talked about an individual’s ability to not only consent to sex but perform fairly complex tasks while in a blackout. “Again — I know just enough to teach this to undergraduates, but in a blackout you could then go, you know drive a car, I’ve not seen this but I’ve heard performed surgery, fly an airplane,” she testified in the Turner case Fromme was asked if she had seen a study that someone had flown a plane in an alcoholic blackout? “I have not,” she said. “So to suggest that would be misleading?” the prosecutor asked. “I could say I’ve heard other experts testify to that,” she said. “It’s not something I have direct knowledge of, so I suppose that’s not something I should talk about.” But without a rebuttal witness from SafeSport, Roberts sensed that Fromme’s testimony resonated with the arbitration panel. “I remember thinking at the end, there was one question that the arbitrator asked of the expert witness that really concerned me,” Roberts. Chapman asked Fromme about Roberts telling her training partners about the incident in the first days after she returned from Rio. “So the arbitrator asked well oh, if someone told basically you were raped now you think you’ve been raped and you’ve been telling this story for now 2½ years when someone does that are they going to believe themselves the more and more they tell the story?” Roberts recalled. “Those words came from the arbitrator’s mouth asking the expert witness. Fromme said, “Absolutely yes, that’s what happened,” Roberts recalled. She remembered thinking, “Well that doesn’t sound good. Now the arbitrator’s questioning my credibility. “The arbitrator implied that I had been telling myself a lie for 2½ years, been telling it so long and so much that I believed it and I made everyone else believe.” A week later the arbitration panel issued its ruling, finding that based upon the testimony of Dr. Fromme, the witnesses who testified orally or by declaration, the video of restaurant scene, as well as the Center’s evidence, the Center failed” to prove by a preponderance of the evidence that Roberts had been incapacitated by alcohol. The center, the panel said, had also failed to prove that she was incapacitated by sleep. The SafeSport ban for non-sexual contact was overturned. Later this summer Burns will be allowed to compete and coach at the same competitions where Roberts planned to chase her Olympic dream. Devastated by the ruling A day after the arbitration ruling, Roberts wrote a letter to the panel members. “To say that I was devastated when I read your decision last night would be an understatement, and I want you to know you made a mistake,” she wrote. “I placed a great deal of trust in the SafeSport organization and this arbitration panel and was left utterly disappointed. “SafeSport and their policies were established to keep athletes safe and undermining their decision is the exact reason that victims continue to stay silent and perpetrators continue to believe they can behave in this manner and get away with it. “…I am disappointed but not shocked in the system that continues to result in an indeterminable number of rapes. A system that shames victim for their actions and sexuality and places the burden of proof on them while praising men’s athletic abilities, good character and concerns themselves with their reputation. This is exactly why I didn’t come forward in the first place.” [related_articles location=”left” show_article_date=”false” article_type=”automatic-primary-section”]
22 Mar 19
Daily Breeze
Editor’s note: This is the second of two stories investigating SafeSport’s process for handling athlete complaints of sexual abuse. The first story examined SafeSport’s 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 SafeSport’s 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 panel’s ruling would be final. Under SafeSport rules, neither Roberts nor Burns could appeal the panel’s 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 didn’t feel right at all.” Ban overturned 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 SafeSport’s policies and procedures, the arbitration process and SafeSport officials’ performance and decision making both during their investigation and arbitration. RELATED: Team USA weightlifter Jennyfer Robert reported being raped, but SafeSport process only added to her anxiety 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. SafeSport’s determination that Roberts was sexually assaulted while she was incapacitated by alcohol consumption and sleep was “seriously undercut” by Fromme’s 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 SafeSport’s policies, procedures and supplemental rules would apply to the investigation and arbitration hearing but that USA Weightlifting’s 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.” SafeSport’s 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 Weightlifting’s by-laws and policies in April 2016 that defined non-consensual sexual contact or required consent. “USAW’s 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. SCNG’s policy is to not name the victims of sex crimes. Roberts, however, agreed to be identified. A gulf between investigation and arbitration panel’s decision The documents also underscore the wide disparity between SafeSport’s original ruling and the arbitration panel’s decision. “It’s like there were two cases but they’re 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[cq comment=”The following content will display as an info box.”] Related links Ban of Mission Viejo weightlifter Colin Burns for non-consensual sexual contact during Team USA trip was overturned Team USA weightlifter Jennyfer Roberts reported being raped, but SafeSport process only added to her anxiety Survivors, U.S. Center for Safe Sport clash over Jean Lopez reinstatement Athletes who survived abuse join together as advocates Mark Schubert is a legend for making US swimmers champions, but did he fail when they needed him most? [cq comment=”This is the end of the info box.”] 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 there’s a disconnect here,” Starr said referring to the Burns case. “There’s such a big variance between the (original) SafeSport outcome and the decision by the (arbitration) panel. They’re 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, it’s pretty clear that it’s time to re-evaluate these cases.”   Survivors, Starr continued “are not fairly represented in the system and if you don’t have that, it sets the tone that it isn’t safe. I mean it’s called the Center for SafeSport and there wasn’t anything safe there.” SafeSport’s 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 athlete’s sexual history. “It sends a really chilling message to victims,” Michele Landis Dauber, a Stanford Law School professor, said of the arbitrator’s questioning of Roberts. “It says if you report sexual assault or sexual abuse, your past behavior can be opened up and interrogated. It’s classic slut-shaming and the reason why it’s not allowed” in criminal cases. Said Laura Palumbo, communications director at the National Sexual Violence Research Center, “It’s 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 survivor’s 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 aren’t 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 they’re seeking in coming forward is ensuring that this person can’t 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 wasn’t believed, thinking that Roberts had a lot information confirming the validity of her story and even she didn’t get believed because she was drinking. So who is going to believe me?” The arbitration panel overruled SafeSport’s 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 center’s senior investigator and the point person on the Burns investigation, to testify during the arbitration hearing. “We didn’t bring Kathleen in which I thought was a mistake,” Roberts said referring to SafeSport’s decision. Still Joe Zonies, SafeSport’s attorney, Roberts said, “felt pretty confident this whole time. He didn’t 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. RIO DE JANEIRO, BRAZIL – APRIL 10: Colin Thomas Burns of the United States competes in the men’s 94kg weightlifting final of the South American Weightlifting Championship as a test event for the Rio 2016 Olympic Games at the Olympic Park’s Carioca Arena 1 on April 10, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) 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 city’s 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 McCoy’s 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. “Asleep” “in my room” Sandoval wrote back at 1:21 a.m. “What???????” 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 wouldn’t stop until he was done. “…He was going to continue, but I couldn’t 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 didn’t happen,” Roberts said. Pretending became harder when Roberts found Burns’ ball cap amid the room’s 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 that’s 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 Smith’s notes. “I found it in my room this morning,” Roberts told him, according to the notes. “That’s 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 didn’t 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) didn’t 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 Weightlifting’s Policies in effect as of April 11, 2016.” But it was Fromme’s testimony on Burns’ behalf that the arbitration panel cited repeatedly in their decision. Defense witness Kim Fromme testifies in the rape trial against two juveniles in Steubenville, Ohio. Fromme has testified in a number of high profile cases in defense of young men accused of rape where alcohol was involved. (AP Photo/Keith Srakocic, Pool) Fromme’s 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, Ohio’s 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. “Let’s hope for comparable outcome for your client.” “It’s 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 professor’s 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 Fromme’s 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 Fromme’s @UT Austin…Clinical psychologists should not be #rapeapologists,” Snehal Shingavi, a Texas English professor wrote on his twitter account. “I don’t know how she’s 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 legal limit for driving in California). She woke up at 4:15 a.m., three hours after the attack, in a local hospital with no memory of how she got there. In the Burns and Turner cases, Fromme testified that individuals in an alcohol-induced blackout are in a period of amnesia where they are fully conscious and capable of making short-term decisions such as consenting to sex as well as performing tasks like driving, but have no recollection of the period because they are unable to store long-term memory. Blackouts are not the same as passing out and persons can be in a blackout without exhibiting signs of incapacitation, Fromme said. “Her testimony was clearly intended to cast doubt on the facts,” Dauber said referring to the Turner case. “It raised doubts about Kim Fromme. It raised significant doubts for me about her willingness to testify in cases where the evidence does not support her theories.” Dauber’s point was underscored by an email from Fromme to Armstrong, Turner’s defense attorney. Under California law, attorneys are required to share with opposing counsel expected statements, opinions that expert witnesses will provide at trial. An attorney for Turner asked Fromme if the firm could use her written direct examination from a previous case to meet this requirement. “Mike, I think it would be a bad idea to give the DA even a generic version of the direct I wrote for US v Andrews,” Fromme wrote Armstrong. “It would be akin to sharing our entire poker hand in advance of placing our bets.” In the Burns’ case, Fromme used an algorithm based on evidence from the case to determine Roberts’ likely blood alcohol content at the time of the sexual encounter in Rio. “The expert witness never talked to me,” Roberts said Fromme “opined that (Roberts) experienced alcohol-induced blackouts on the night of the encounter with (Burns), and that a blackout would not necessarily impact (Roberts’) ability to consent to sex,” according to the arbitration panel decision document. Fromme testified that to be incapacitated by alcohol requires a blood alcohol content of .30. She told the panel “that, based on her review of the evidence (Roberts) was not overtly intoxicated at the time of the sexual encounter,” the decision document said. Roberts recalled a conversation she had with Smith, SafeSport’s senior investigator, after Fromme’s testimony. “I remember (Smith) saying how ridiculous it was to say I was drunk enough to have memory lapses but not drunk enough for a man to know he shouldn’t try to have sex with me,” Roberts said in an email. “Also, I was sleeping. I know Kathleen was upset they kept coming up with ‘new evidence’ as we got closer to the arbitration.” Yet SafeSport provided “no expert evidence to counter this evidence” by Fromme, the arbitration panel wrote in their decision. A review of Fromme’s testimony in the Turner case, however, offered several potential lines of rebuttal for SafeSport. Fromme while being questioned by a prosecutor in the Turner case acknowledged that  “I’m not a sleep expert.” She also said she had not done any research herself to verify the .30 blood alcohol content she has cited in multiple cases as the standard for being incapacitated. “I’m familiar with it through the literature,” Fromme said. “So lots of those are based on — composites of studies are based on, you know, hospital reports, et cetera,” Fromme continued. “So can you elaborate on that?” a prosecutor asked Fromme “I can’t,” she said. She was asked if she was familiar with the specifics of the composite studies or the hospital reports? “I’m not,” Fromme said. She also acknowledged “there are certainly individual differences and exceptions” to the .30 standard. “It seems very oversimplified especially when we think about the fact that for every individual your level of alcohol tolerance tends to fluctuate,” Palumbo said referring to the .30 blood alcohol standard. “I can imagine these individuals as athletes depending on how hard they were working out, how much food they’ve eaten, whether or not they’re properly hydrated all of that is going to be impacting how much they’re affected by alcohol. “I think the bigger challenge of course is we’re living in a society where there’s more of a focus and more interest and attention to whether we can measure intoxication to the point that someone may have arguably agreed to this sexual attraction versus keeping actually caring about the state of their sexual partners and wanting them to be a participant in the experience and not just trying to determine you can safely get someone and still legally have sex with them.” Jennyfer Roberts competes in the women’s weightlifting competition as a test event for 2016 Rio Olympics at the Olympic Park on April 8, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) Consent during blackout? In testifying in cases, Fromme has frequently talked about an individual’s ability to not only consent to sex but perform fairly complex tasks while in a blackout. “Again — I know just enough to teach this to undergraduates, but in a blackout you could then go, you know drive a car, I’ve not seen this but I’ve heard performed surgery, fly an airplane,” she testified in the Turner case Fromme was asked if she had seen a study that someone had flown a plane in an alcoholic blackout? “I have not,” she said. “So to suggest that would be misleading?” the prosecutor asked. “I could say I’ve heard other experts testify to that,” she said. “It’s not something I have direct knowledge of, so I suppose that’s not something I should talk about.” But without a rebuttal witness from SafeSport, Roberts sensed that Fromme’s testimony resonated with the arbitration panel. “I remember thinking at the end, there was one question that the arbitrator asked of the expert witness that really concerned me,” Roberts. Chapman asked Fromme about Roberts telling her training partners about the incident in the first days after she returned from Rio. “So the arbitrator asked well oh, if someone told basically you were raped now you think you’ve been raped and you’ve been telling this story for now 2½ years when someone does that are they going to believe themselves the more and more they tell the story?” Roberts recalled. “Those words came from the arbitrator’s mouth asking the expert witness. Fromme said, “Absolutely yes, that’s what happened,” Roberts recalled. She remembered thinking, “Well that doesn’t sound good. Now the arbitrator’s questioning my credibility. “The arbitrator implied that I had been telling myself a lie for 2½ years, been telling it so long and so much that I believed it and I made everyone else believe.” A week later the arbitration panel issued its ruling, finding that based upon the testimony of Dr. Fromme, the witnesses who testified orally or by declaration, the video of restaurant scene, as well as the Center’s evidence, the Center failed” to prove by a preponderance of the evidence that Roberts had been incapacitated by alcohol. The center, the panel said, had also failed to prove that she was incapacitated by sleep. The SafeSport ban for non-sexual contact was overturned. Later this summer Burns will be allowed to compete and coach at the same competitions where Roberts planned to chase her Olympic dream. Devastated by the ruling A day after the arbitration ruling, Roberts wrote a letter to the panel members. “To say that I was devastated when I read your decision last night would be an understatement, and I want you to know you made a mistake,” she wrote. “I placed a great deal of trust in the SafeSport organization and this arbitration panel and was left utterly disappointed. “SafeSport and their policies were established to keep athletes safe and undermining their decision is the exact reason that victims continue to stay silent and perpetrators continue to believe they can behave in this manner and get away with it. “…I am disappointed but not shocked in the system that continues to result in an indeterminable number of rapes. A system that shames victim for their actions and sexuality and places the burden of proof on them while praising men’s athletic abilities, good character and concerns themselves with their reputation. This is exactly why I didn’t come forward in the first place.” [related_articles location=”left” show_article_date=”false” article_type=”automatic-primary-section”]
22 Mar 19
Whittier Daily News
Editor’s note: This is the second of two stories investigating SafeSport’s process for handling athlete complaints of sexual abuse. The first story examined SafeSport’s 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 SafeSport’s 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 panel’s ruling would be final. Under SafeSport rules, neither Roberts nor Burns could appeal the panel’s 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 didn’t feel right at all.” Ban overturned 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 SafeSport’s policies and procedures, the arbitration process and SafeSport officials’ performance and decision making both during their investigation and arbitration. RELATED: Team USA weightlifter Jennyfer Robert reported being raped, but SafeSport process only added to her anxiety 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. SafeSport’s determination that Roberts was sexually assaulted while she was incapacitated by alcohol consumption and sleep was “seriously undercut” by Fromme’s 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 SafeSport’s policies, procedures and supplemental rules would apply to the investigation and arbitration hearing but that USA Weightlifting’s 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.” SafeSport’s 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 Weightlifting’s by-laws and policies in April 2016 that defined non-consensual sexual contact or required consent. “USAW’s 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. SCNG’s policy is to not name the victims of sex crimes. Roberts, however, agreed to be identified. A gulf between investigation and arbitration panel’s decision The documents also underscore the wide disparity between SafeSport’s original ruling and the arbitration panel’s decision. “It’s like there were two cases but they’re 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[cq comment=”The following content will display as an info box.”] Related links Ban of Mission Viejo weightlifter Colin Burns for non-consensual sexual contact during Team USA trip was overturned Team USA weightlifter Jennyfer Roberts reported being raped, but SafeSport process only added to her anxiety Survivors, U.S. Center for Safe Sport clash over Jean Lopez reinstatement Athletes who survived abuse join together as advocates Mark Schubert is a legend for making US swimmers champions, but did he fail when they needed him most? [cq comment=”This is the end of the info box.”] 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 there’s a disconnect here,” Starr said referring to the Burns case. “There’s such a big variance between the (original) SafeSport outcome and the decision by the (arbitration) panel. They’re 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, it’s pretty clear that it’s time to re-evaluate these cases.”   Survivors, Starr continued “are not fairly represented in the system and if you don’t have that, it sets the tone that it isn’t safe. I mean it’s called the Center for SafeSport and there wasn’t anything safe there.” SafeSport’s 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 athlete’s sexual history. “It sends a really chilling message to victims,” Michele Landis Dauber, a Stanford Law School professor, said of the arbitrator’s questioning of Roberts. “It says if you report sexual assault or sexual abuse, your past behavior can be opened up and interrogated. It’s classic slut-shaming and the reason why it’s not allowed” in criminal cases. Said Laura Palumbo, communications director at the National Sexual Violence Research Center, “It’s 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 survivor’s 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 aren’t 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 they’re seeking in coming forward is ensuring that this person can’t 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 wasn’t believed, thinking that Roberts had a lot information confirming the validity of her story and even she didn’t get believed because she was drinking. So who is going to believe me?” The arbitration panel overruled SafeSport’s 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 center’s senior investigator and the point person on the Burns investigation, to testify during the arbitration hearing. “We didn’t bring Kathleen in which I thought was a mistake,” Roberts said referring to SafeSport’s decision. Still Joe Zonies, SafeSport’s attorney, Roberts said, “felt pretty confident this whole time. He didn’t 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. RIO DE JANEIRO, BRAZIL – APRIL 10: Colin Thomas Burns of the United States competes in the men’s 94kg weightlifting final of the South American Weightlifting Championship as a test event for the Rio 2016 Olympic Games at the Olympic Park’s Carioca Arena 1 on April 10, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) 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 city’s 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 McCoy’s 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. “Asleep” “in my room” Sandoval wrote back at 1:21 a.m. “What???????” 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 wouldn’t stop until he was done. “…He was going to continue, but I couldn’t 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 didn’t happen,” Roberts said. Pretending became harder when Roberts found Burns’ ball cap amid the room’s 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 that’s 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 Smith’s notes. “I found it in my room this morning,” Roberts told him, according to the notes. “That’s 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 didn’t 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) didn’t 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 Weightlifting’s Policies in effect as of April 11, 2016.” But it was Fromme’s testimony on Burns’ behalf that the arbitration panel cited repeatedly in their decision. Defense witness Kim Fromme testifies in the rape trial against two juveniles in Steubenville, Ohio. Fromme has testified in a number of high profile cases in defense of young men accused of rape where alcohol was involved. (AP Photo/Keith Srakocic, Pool) Fromme’s 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, Ohio’s 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. “Let’s hope for comparable outcome for your client.” “It’s 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 professor’s 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 Fromme’s 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 Fromme’s @UT Austin…Clinical psychologists should not be #rapeapologists,” Snehal Shingavi, a Texas English professor wrote on his twitter account. “I don’t know how she’s 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 legal limit for driving in California). She woke up at 4:15 a.m., three hours after the attack, in a local hospital with no memory of how she got there. In the Burns and Turner cases, Fromme testified that individuals in an alcohol-induced blackout are in a period of amnesia where they are fully conscious and capable of making short-term decisions such as consenting to sex as well as performing tasks like driving, but have no recollection of the period because they are unable to store long-term memory. Blackouts are not the same as passing out and persons can be in a blackout without exhibiting signs of incapacitation, Fromme said. “Her testimony was clearly intended to cast doubt on the facts,” Dauber said referring to the Turner case. “It raised doubts about Kim Fromme. It raised significant doubts for me about her willingness to testify in cases where the evidence does not support her theories.” Dauber’s point was underscored by an email from Fromme to Armstrong, Turner’s defense attorney. Under California law, attorneys are required to share with opposing counsel expected statements, opinions that expert witnesses will provide at trial. An attorney for Turner asked Fromme if the firm could use her written direct examination from a previous case to meet this requirement. “Mike, I think it would be a bad idea to give the DA even a generic version of the direct I wrote for US v Andrews,” Fromme wrote Armstrong. “It would be akin to sharing our entire poker hand in advance of placing our bets.” In the Burns’ case, Fromme used an algorithm based on evidence from the case to determine Roberts’ likely blood alcohol content at the time of the sexual encounter in Rio. “The expert witness never talked to me,” Roberts said Fromme “opined that (Roberts) experienced alcohol-induced blackouts on the night of the encounter with (Burns), and that a blackout would not necessarily impact (Roberts’) ability to consent to sex,” according to the arbitration panel decision document. Fromme testified that to be incapacitated by alcohol requires a blood alcohol content of .30. She told the panel “that, based on her review of the evidence (Roberts) was not overtly intoxicated at the time of the sexual encounter,” the decision document said. Roberts recalled a conversation she had with Smith, SafeSport’s senior investigator, after Fromme’s testimony. “I remember (Smith) saying how ridiculous it was to say I was drunk enough to have memory lapses but not drunk enough for a man to know he shouldn’t try to have sex with me,” Roberts said in an email. “Also, I was sleeping. I know Kathleen was upset they kept coming up with ‘new evidence’ as we got closer to the arbitration.” Yet SafeSport provided “no expert evidence to counter this evidence” by Fromme, the arbitration panel wrote in their decision. A review of Fromme’s testimony in the Turner case, however, offered several potential lines of rebuttal for SafeSport. Fromme while being questioned by a prosecutor in the Turner case acknowledged that  “I’m not a sleep expert.” She also said she had not done any research herself to verify the .30 blood alcohol content she has cited in multiple cases as the standard for being incapacitated. “I’m familiar with it through the literature,” Fromme said. “So lots of those are based on — composites of studies are based on, you know, hospital reports, et cetera,” Fromme continued. “So can you elaborate on that?” a prosecutor asked Fromme “I can’t,” she said. She was asked if she was familiar with the specifics of the composite studies or the hospital reports? “I’m not,” Fromme said. She also acknowledged “there are certainly individual differences and exceptions” to the .30 standard. “It seems very oversimplified especially when we think about the fact that for every individual your level of alcohol tolerance tends to fluctuate,” Palumbo said referring to the .30 blood alcohol standard. “I can imagine these individuals as athletes depending on how hard they were working out, how much food they’ve eaten, whether or not they’re properly hydrated all of that is going to be impacting how much they’re affected by alcohol. “I think the bigger challenge of course is we’re living in a society where there’s more of a focus and more interest and attention to whether we can measure intoxication to the point that someone may have arguably agreed to this sexual attraction versus keeping actually caring about the state of their sexual partners and wanting them to be a participant in the experience and not just trying to determine you can safely get someone and still legally have sex with them.” Jennyfer Roberts competes in the women’s weightlifting competition as a test event for 2016 Rio Olympics at the Olympic Park on April 8, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) Consent during blackout? In testifying in cases, Fromme has frequently talked about an individual’s ability to not only consent to sex but perform fairly complex tasks while in a blackout. “Again — I know just enough to teach this to undergraduates, but in a blackout you could then go, you know drive a car, I’ve not seen this but I’ve heard performed surgery, fly an airplane,” she testified in the Turner case Fromme was asked if she had seen a study that someone had flown a plane in an alcoholic blackout? “I have not,” she said. “So to suggest that would be misleading?” the prosecutor asked. “I could say I’ve heard other experts testify to that,” she said. “It’s not something I have direct knowledge of, so I suppose that’s not something I should talk about.” But without a rebuttal witness from SafeSport, Roberts sensed that Fromme’s testimony resonated with the arbitration panel. “I remember thinking at the end, there was one question that the arbitrator asked of the expert witness that really concerned me,” Roberts. Chapman asked Fromme about Roberts telling her training partners about the incident in the first days after she returned from Rio. “So the arbitrator asked well oh, if someone told basically you were raped now you think you’ve been raped and you’ve been telling this story for now 2½ years when someone does that are they going to believe themselves the more and more they tell the story?” Roberts recalled. “Those words came from the arbitrator’s mouth asking the expert witness. Fromme said, “Absolutely yes, that’s what happened,” Roberts recalled. She remembered thinking, “Well that doesn’t sound good. Now the arbitrator’s questioning my credibility. “The arbitrator implied that I had been telling myself a lie for 2½ years, been telling it so long and so much that I believed it and I made everyone else believe.” A week later the arbitration panel issued its ruling, finding that based upon the testimony of Dr. Fromme, the witnesses who testified orally or by declaration, the video of restaurant scene, as well as the Center’s evidence, the Center failed” to prove by a preponderance of the evidence that Roberts had been incapacitated by alcohol. The center, the panel said, had also failed to prove that she was incapacitated by sleep. The SafeSport ban for non-sexual contact was overturned. Later this summer Burns will be allowed to compete and coach at the same competitions where Roberts planned to chase her Olympic dream. Devastated by the ruling A day after the arbitration ruling, Roberts wrote a letter to the panel members. “To say that I was devastated when I read your decision last night would be an understatement, and I want you to know you made a mistake,” she wrote. “I placed a great deal of trust in the SafeSport organization and this arbitration panel and was left utterly disappointed. “SafeSport and their policies were established to keep athletes safe and undermining their decision is the exact reason that victims continue to stay silent and perpetrators continue to believe they can behave in this manner and get away with it. “…I am disappointed but not shocked in the system that continues to result in an indeterminable number of rapes. A system that shames victim for their actions and sexuality and places the burden of proof on them while praising men’s athletic abilities, good character and concerns themselves with their reputation. This is exactly why I didn’t come forward in the first place.” [related_articles location=”left” show_article_date=”false” article_type=”automatic-primary-section”]
22 Mar 19
Pasadena Star News
Editor’s note: This is the second of two stories investigating SafeSport’s process for handling athlete complaints of sexual abuse. The first story examined SafeSport’s 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 SafeSport’s 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 panel’s ruling would be final. Under SafeSport rules, neither Roberts nor Burns could appeal the panel’s 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 didn’t feel right at all.” Ban overturned 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 SafeSport’s policies and procedures, the arbitration process and SafeSport officials’ performance and decision making both during their investigation and arbitration. RELATED: Team USA weightlifter Jennyfer Robert reported being raped, but SafeSport process only added to her anxiety 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. SafeSport’s determination that Roberts was sexually assaulted while she was incapacitated by alcohol consumption and sleep was “seriously undercut” by Fromme’s 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 SafeSport’s policies, procedures and supplemental rules would apply to the investigation and arbitration hearing but that USA Weightlifting’s 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.” SafeSport’s 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 Weightlifting’s by-laws and policies in April 2016 that defined non-consensual sexual contact or required consent. “USAW’s 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. SCNG’s policy is to not name the victims of sex crimes. Roberts, however, agreed to be identified. A gulf between investigation and arbitration panel’s decision The documents also underscore the wide disparity between SafeSport’s original ruling and the arbitration panel’s decision. “It’s like there were two cases but they’re 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[cq comment=”The following content will display as an info box.”] Related links Ban of Mission Viejo weightlifter Colin Burns for non-consensual sexual contact during Team USA trip was overturned Team USA weightlifter Jennyfer Roberts reported being raped, but SafeSport process only added to her anxiety Survivors, U.S. Center for Safe Sport clash over Jean Lopez reinstatement Athletes who survived abuse join together as advocates Mark Schubert is a legend for making US swimmers champions, but did he fail when they needed him most? [cq comment=”This is the end of the info box.”] 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 there’s a disconnect here,” Starr said referring to the Burns case. “There’s such a big variance between the (original) SafeSport outcome and the decision by the (arbitration) panel. They’re 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, it’s pretty clear that it’s time to re-evaluate these cases.”   Survivors, Starr continued “are not fairly represented in the system and if you don’t have that, it sets the tone that it isn’t safe. I mean it’s called the Center for SafeSport and there wasn’t anything safe there.” SafeSport’s 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 athlete’s sexual history. “It sends a really chilling message to victims,” Michele Landis Dauber, a Stanford Law School professor, said of the arbitrator’s questioning of Roberts. “It says if you report sexual assault or sexual abuse, your past behavior can be opened up and interrogated. It’s classic slut-shaming and the reason why it’s not allowed” in criminal cases. Said Laura Palumbo, communications director at the National Sexual Violence Research Center, “It’s 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 survivor’s 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 aren’t 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 they’re seeking in coming forward is ensuring that this person can’t 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 wasn’t believed, thinking that Roberts had a lot information confirming the validity of her story and even she didn’t get believed because she was drinking. So who is going to believe me?” The arbitration panel overruled SafeSport’s 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 center’s senior investigator and the point person on the Burns investigation, to testify during the arbitration hearing. “We didn’t bring Kathleen in which I thought was a mistake,” Roberts said referring to SafeSport’s decision. Still Joe Zonies, SafeSport’s attorney, Roberts said, “felt pretty confident this whole time. He didn’t 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. RIO DE JANEIRO, BRAZIL – APRIL 10: Colin Thomas Burns of the United States competes in the men’s 94kg weightlifting final of the South American Weightlifting Championship as a test event for the Rio 2016 Olympic Games at the Olympic Park’s Carioca Arena 1 on April 10, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) 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 city’s 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 McCoy’s 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. “Asleep” “in my room” Sandoval wrote back at 1:21 a.m. “What???????” 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 wouldn’t stop until he was done. “…He was going to continue, but I couldn’t 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 didn’t happen,” Roberts said. Pretending became harder when Roberts found Burns’ ball cap amid the room’s 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 that’s 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 Smith’s notes. “I found it in my room this morning,” Roberts told him, according to the notes. “That’s 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 didn’t 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) didn’t 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 Weightlifting’s Policies in effect as of April 11, 2016.” But it was Fromme’s testimony on Burns’ behalf that the arbitration panel cited repeatedly in their decision. Defense witness Kim Fromme testifies in the rape trial against two juveniles in Steubenville, Ohio. Fromme has testified in a number of high profile cases in defense of young men accused of rape where alcohol was involved. (AP Photo/Keith Srakocic, Pool) Fromme’s 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, Ohio’s 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. “Let’s hope for comparable outcome for your client.” “It’s 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 professor’s 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 Fromme’s 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 Fromme’s @UT Austin…Clinical psychologists should not be #rapeapologists,” Snehal Shingavi, a Texas English professor wrote on his twitter account. “I don’t know how she’s 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 legal limit for driving in California). She woke up at 4:15 a.m., three hours after the attack, in a local hospital with no memory of how she got there. In the Burns and Turner cases, Fromme testified that individuals in an alcohol-induced blackout are in a period of amnesia where they are fully conscious and capable of making short-term decisions such as consenting to sex as well as performing tasks like driving, but have no recollection of the period because they are unable to store long-term memory. Blackouts are not the same as passing out and persons can be in a blackout without exhibiting signs of incapacitation, Fromme said. “Her testimony was clearly intended to cast doubt on the facts,” Dauber said referring to the Turner case. “It raised doubts about Kim Fromme. It raised significant doubts for me about her willingness to testify in cases where the evidence does not support her theories.” Dauber’s point was underscored by an email from Fromme to Armstrong, Turner’s defense attorney. Under California law, attorneys are required to share with opposing counsel expected statements, opinions that expert witnesses will provide at trial. An attorney for Turner asked Fromme if the firm could use her written direct examination from a previous case to meet this requirement. “Mike, I think it would be a bad idea to give the DA even a generic version of the direct I wrote for US v Andrews,” Fromme wrote Armstrong. “It would be akin to sharing our entire poker hand in advance of placing our bets.” In the Burns’ case, Fromme used an algorithm based on evidence from the case to determine Roberts’ likely blood alcohol content at the time of the sexual encounter in Rio. “The expert witness never talked to me,” Roberts said Fromme “opined that (Roberts) experienced alcohol-induced blackouts on the night of the encounter with (Burns), and that a blackout would not necessarily impact (Roberts’) ability to consent to sex,” according to the arbitration panel decision document. Fromme testified that to be incapacitated by alcohol requires a blood alcohol content of .30. She told the panel “that, based on her review of the evidence (Roberts) was not overtly intoxicated at the time of the sexual encounter,” the decision document said. Roberts recalled a conversation she had with Smith, SafeSport’s senior investigator, after Fromme’s testimony. “I remember (Smith) saying how ridiculous it was to say I was drunk enough to have memory lapses but not drunk enough for a man to know he shouldn’t try to have sex with me,” Roberts said in an email. “Also, I was sleeping. I know Kathleen was upset they kept coming up with ‘new evidence’ as we got closer to the arbitration.” Yet SafeSport provided “no expert evidence to counter this evidence” by Fromme, the arbitration panel wrote in their decision. A review of Fromme’s testimony in the Turner case, however, offered several potential lines of rebuttal for SafeSport. Fromme while being questioned by a prosecutor in the Turner case acknowledged that  “I’m not a sleep expert.” She also said she had not done any research herself to verify the .30 blood alcohol content she has cited in multiple cases as the standard for being incapacitated. “I’m familiar with it through the literature,” Fromme said. “So lots of those are based on — composites of studies are based on, you know, hospital reports, et cetera,” Fromme continued. “So can you elaborate on that?” a prosecutor asked Fromme “I can’t,” she said. She was asked if she was familiar with the specifics of the composite studies or the hospital reports? “I’m not,” Fromme said. She also acknowledged “there are certainly individual differences and exceptions” to the .30 standard. “It seems very oversimplified especially when we think about the fact that for every individual your level of alcohol tolerance tends to fluctuate,” Palumbo said referring to the .30 blood alcohol standard. “I can imagine these individuals as athletes depending on how hard they were working out, how much food they’ve eaten, whether or not they’re properly hydrated all of that is going to be impacting how much they’re affected by alcohol. “I think the bigger challenge of course is we’re living in a society where there’s more of a focus and more interest and attention to whether we can measure intoxication to the point that someone may have arguably agreed to this sexual attraction versus keeping actually caring about the state of their sexual partners and wanting them to be a participant in the experience and not just trying to determine you can safely get someone and still legally have sex with them.” Jennyfer Roberts competes in the women’s weightlifting competition as a test event for 2016 Rio Olympics at the Olympic Park on April 8, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) Consent during blackout? In testifying in cases, Fromme has frequently talked about an individual’s ability to not only consent to sex but perform fairly complex tasks while in a blackout. “Again — I know just enough to teach this to undergraduates, but in a blackout you could then go, you know drive a car, I’ve not seen this but I’ve heard performed surgery, fly an airplane,” she testified in the Turner case Fromme was asked if she had seen a study that someone had flown a plane in an alcoholic blackout? “I have not,” she said. “So to suggest that would be misleading?” the prosecutor asked. “I could say I’ve heard other experts testify to that,” she said. “It’s not something I have direct knowledge of, so I suppose that’s not something I should talk about.” But without a rebuttal witness from SafeSport, Roberts sensed that Fromme’s testimony resonated with the arbitration panel. “I remember thinking at the end, there was one question that the arbitrator asked of the expert witness that really concerned me,” Roberts. Chapman asked Fromme about Roberts telling her training partners about the incident in the first days after she returned from Rio. “So the arbitrator asked well oh, if someone told basically you were raped now you think you’ve been raped and you’ve been telling this story for now 2½ years when someone does that are they going to believe themselves the more and more they tell the story?” Roberts recalled. “Those words came from the arbitrator’s mouth asking the expert witness. Fromme said, “Absolutely yes, that’s what happened,” Roberts recalled. She remembered thinking, “Well that doesn’t sound good. Now the arbitrator’s questioning my credibility. “The arbitrator implied that I had been telling myself a lie for 2½ years, been telling it so long and so much that I believed it and I made everyone else believe.” A week later the arbitration panel issued its ruling, finding that based upon the testimony of Dr. Fromme, the witnesses who testified orally or by declaration, the video of restaurant scene, as well as the Center’s evidence, the Center failed” to prove by a preponderance of the evidence that Roberts had been incapacitated by alcohol. The center, the panel said, had also failed to prove that she was incapacitated by sleep. The SafeSport ban for non-sexual contact was overturned. Later this summer Burns will be allowed to compete and coach at the same competitions where Roberts planned to chase her Olympic dream. Devastated by the ruling A day after the arbitration ruling, Roberts wrote a letter to the panel members. “To say that I was devastated when I read your decision last night would be an understatement, and I want you to know you made a mistake,” she wrote. “I placed a great deal of trust in the SafeSport organization and this arbitration panel and was left utterly disappointed. “SafeSport and their policies were established to keep athletes safe and undermining their decision is the exact reason that victims continue to stay silent and perpetrators continue to believe they can behave in this manner and get away with it. “…I am disappointed but not shocked in the system that continues to result in an indeterminable number of rapes. A system that shames victim for their actions and sexuality and places the burden of proof on them while praising men’s athletic abilities, good character and concerns themselves with their reputation. This is exactly why I didn’t come forward in the first place.” [related_articles location=”left” show_article_date=”false” article_type=”automatic-primary-section”]
22 Mar 19
Daily Bulletin
Editor’s note: This is the second of two stories investigating SafeSport’s process for handling athlete complaints of sexual abuse. The first story examined SafeSport’s 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 SafeSport’s 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 panel’s ruling would be final. Under SafeSport rules, neither Roberts nor Burns could appeal the panel’s 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 didn’t feel right at all.” Ban overturned 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 SafeSport’s policies and procedures, the arbitration process and SafeSport officials’ performance and decision making both during their investigation and arbitration. RELATED: Team USA weightlifter Jennyfer Robert reported being raped, but SafeSport process only added to her anxiety 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. SafeSport’s determination that Roberts was sexually assaulted while she was incapacitated by alcohol consumption and sleep was “seriously undercut” by Fromme’s 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 SafeSport’s policies, procedures and supplemental rules would apply to the investigation and arbitration hearing but that USA Weightlifting’s 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.” SafeSport’s 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 Weightlifting’s by-laws and policies in April 2016 that defined non-consensual sexual contact or required consent. “USAW’s 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. SCNG’s policy is to not name the victims of sex crimes. Roberts, however, agreed to be identified. A gulf between investigation and arbitration panel’s decision The documents also underscore the wide disparity between SafeSport’s original ruling and the arbitration panel’s decision. “It’s like there were two cases but they’re 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[cq comment=”The following content will display as an info box.”] Related links Ban of Mission Viejo weightlifter Colin Burns for non-consensual sexual contact during Team USA trip was overturned Team USA weightlifter Jennyfer Roberts reported being raped, but SafeSport process only added to her anxiety Survivors, U.S. Center for Safe Sport clash over Jean Lopez reinstatement Athletes who survived abuse join together as advocates Mark Schubert is a legend for making US swimmers champions, but did he fail when they needed him most? [cq comment=”This is the end of the info box.”] 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 there’s a disconnect here,” Starr said referring to the Burns case. “There’s such a big variance between the (original) SafeSport outcome and the decision by the (arbitration) panel. They’re 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, it’s pretty clear that it’s time to re-evaluate these cases.”   Survivors, Starr continued “are not fairly represented in the system and if you don’t have that, it sets the tone that it isn’t safe. I mean it’s called the Center for SafeSport and there wasn’t anything safe there.” SafeSport’s 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 athlete’s sexual history. “It sends a really chilling message to victims,” Michele Landis Dauber, a Stanford Law School professor, said of the arbitrator’s questioning of Roberts. “It says if you report sexual assault or sexual abuse, your past behavior can be opened up and interrogated. It’s classic slut-shaming and the reason why it’s not allowed” in criminal cases. Said Laura Palumbo, communications director at the National Sexual Violence Research Center, “It’s 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 survivor’s 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 aren’t 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 they’re seeking in coming forward is ensuring that this person can’t 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 wasn’t believed, thinking that Roberts had a lot information confirming the validity of her story and even she didn’t get believed because she was drinking. So who is going to believe me?” The arbitration panel overruled SafeSport’s 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 center’s senior investigator and the point person on the Burns investigation, to testify during the arbitration hearing. “We didn’t bring Kathleen in which I thought was a mistake,” Roberts said referring to SafeSport’s decision. Still Joe Zonies, SafeSport’s attorney, Roberts said, “felt pretty confident this whole time. He didn’t 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. RIO DE JANEIRO, BRAZIL – APRIL 10: Colin Thomas Burns of the United States competes in the men’s 94kg weightlifting final of the South American Weightlifting Championship as a test event for the Rio 2016 Olympic Games at the Olympic Park’s Carioca Arena 1 on April 10, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) 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 city’s 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 McCoy’s 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. “Asleep” “in my room” Sandoval wrote back at 1:21 a.m. “What???????” 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 wouldn’t stop until he was done. “…He was going to continue, but I couldn’t 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 didn’t happen,” Roberts said. Pretending became harder when Roberts found Burns’ ball cap amid the room’s 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 that’s 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 Smith’s notes. “I found it in my room this morning,” Roberts told him, according to the notes. “That’s 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 didn’t 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) didn’t 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 Weightlifting’s Policies in effect as of April 11, 2016.” But it was Fromme’s testimony on Burns’ behalf that the arbitration panel cited repeatedly in their decision. Defense witness Kim Fromme testifies in the rape trial against two juveniles in Steubenville, Ohio. Fromme has testified in a number of high profile cases in defense of young men accused of rape where alcohol was involved. (AP Photo/Keith Srakocic, Pool) Fromme’s 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, Ohio’s 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. “Let’s hope for comparable outcome for your client.” “It’s 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 professor’s 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 Fromme’s 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 Fromme’s @UT Austin…Clinical psychologists should not be #rapeapologists,” Snehal Shingavi, a Texas English professor wrote on his twitter account. “I don’t know how she’s 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 legal limit for driving in California). She woke up at 4:15 a.m., three hours after the attack, in a local hospital with no memory of how she got there. In the Burns and Turner cases, Fromme testified that individuals in an alcohol-induced blackout are in a period of amnesia where they are fully conscious and capable of making short-term decisions such as consenting to sex as well as performing tasks like driving, but have no recollection of the period because they are unable to store long-term memory. Blackouts are not the same as passing out and persons can be in a blackout without exhibiting signs of incapacitation, Fromme said. “Her testimony was clearly intended to cast doubt on the facts,” Dauber said referring to the Turner case. “It raised doubts about Kim Fromme. It raised significant doubts for me about her willingness to testify in cases where the evidence does not support her theories.” Dauber’s point was underscored by an email from Fromme to Armstrong, Turner’s defense attorney. Under California law, attorneys are required to share with opposing counsel expected statements, opinions that expert witnesses will provide at trial. An attorney for Turner asked Fromme if the firm could use her written direct examination from a previous case to meet this requirement. “Mike, I think it would be a bad idea to give the DA even a generic version of the direct I wrote for US v Andrews,” Fromme wrote Armstrong. “It would be akin to sharing our entire poker hand in advance of placing our bets.” In the Burns’ case, Fromme used an algorithm based on evidence from the case to determine Roberts’ likely blood alcohol content at the time of the sexual encounter in Rio. “The expert witness never talked to me,” Roberts said Fromme “opined that (Roberts) experienced alcohol-induced blackouts on the night of the encounter with (Burns), and that a blackout would not necessarily impact (Roberts’) ability to consent to sex,” according to the arbitration panel decision document. Fromme testified that to be incapacitated by alcohol requires a blood alcohol content of .30. She told the panel “that, based on her review of the evidence (Roberts) was not overtly intoxicated at the time of the sexual encounter,” the decision document said. Roberts recalled a conversation she had with Smith, SafeSport’s senior investigator, after Fromme’s testimony. “I remember (Smith) saying how ridiculous it was to say I was drunk enough to have memory lapses but not drunk enough for a man to know he shouldn’t try to have sex with me,” Roberts said in an email. “Also, I was sleeping. I know Kathleen was upset they kept coming up with ‘new evidence’ as we got closer to the arbitration.” Yet SafeSport provided “no expert evidence to counter this evidence” by Fromme, the arbitration panel wrote in their decision. A review of Fromme’s testimony in the Turner case, however, offered several potential lines of rebuttal for SafeSport. Fromme while being questioned by a prosecutor in the Turner case acknowledged that  “I’m not a sleep expert.” She also said she had not done any research herself to verify the .30 blood alcohol content she has cited in multiple cases as the standard for being incapacitated. “I’m familiar with it through the literature,” Fromme said. “So lots of those are based on — composites of studies are based on, you know, hospital reports, et cetera,” Fromme continued. “So can you elaborate on that?” a prosecutor asked Fromme “I can’t,” she said. She was asked if she was familiar with the specifics of the composite studies or the hospital reports? “I’m not,” Fromme said. She also acknowledged “there are certainly individual differences and exceptions” to the .30 standard. “It seems very oversimplified especially when we think about the fact that for every individual your level of alcohol tolerance tends to fluctuate,” Palumbo said referring to the .30 blood alcohol standard. “I can imagine these individuals as athletes depending on how hard they were working out, how much food they’ve eaten, whether or not they’re properly hydrated all of that is going to be impacting how much they’re affected by alcohol. “I think the bigger challenge of course is we’re living in a society where there’s more of a focus and more interest and attention to whether we can measure intoxication to the point that someone may have arguably agreed to this sexual attraction versus keeping actually caring about the state of their sexual partners and wanting them to be a participant in the experience and not just trying to determine you can safely get someone and still legally have sex with them.” Jennyfer Roberts competes in the women’s weightlifting competition as a test event for 2016 Rio Olympics at the Olympic Park on April 8, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) Consent during blackout? In testifying in cases, Fromme has frequently talked about an individual’s ability to not only consent to sex but perform fairly complex tasks while in a blackout. “Again — I know just enough to teach this to undergraduates, but in a blackout you could then go, you know drive a car, I’ve not seen this but I’ve heard performed surgery, fly an airplane,” she testified in the Turner case Fromme was asked if she had seen a study that someone had flown a plane in an alcoholic blackout? “I have not,” she said. “So to suggest that would be misleading?” the prosecutor asked. “I could say I’ve heard other experts testify to that,” she said. “It’s not something I have direct knowledge of, so I suppose that’s not something I should talk about.” But without a rebuttal witness from SafeSport, Roberts sensed that Fromme’s testimony resonated with the arbitration panel. “I remember thinking at the end, there was one question that the arbitrator asked of the expert witness that really concerned me,” Roberts. Chapman asked Fromme about Roberts telling her training partners about the incident in the first days after she returned from Rio. “So the arbitrator asked well oh, if someone told basically you were raped now you think you’ve been raped and you’ve been telling this story for now 2½ years when someone does that are they going to believe themselves the more and more they tell the story?” Roberts recalled. “Those words came from the arbitrator’s mouth asking the expert witness. Fromme said, “Absolutely yes, that’s what happened,” Roberts recalled. She remembered thinking, “Well that doesn’t sound good. Now the arbitrator’s questioning my credibility. “The arbitrator implied that I had been telling myself a lie for 2½ years, been telling it so long and so much that I believed it and I made everyone else believe.” A week later the arbitration panel issued its ruling, finding that based upon the testimony of Dr. Fromme, the witnesses who testified orally or by declaration, the video of restaurant scene, as well as the Center’s evidence, the Center failed” to prove by a preponderance of the evidence that Roberts had been incapacitated by alcohol. The center, the panel said, had also failed to prove that she was incapacitated by sleep. The SafeSport ban for non-sexual contact was overturned. Later this summer Burns will be allowed to compete and coach at the same competitions where Roberts planned to chase her Olympic dream. Devastated by the ruling A day after the arbitration ruling, Roberts wrote a letter to the panel members. “To say that I was devastated when I read your decision last night would be an understatement, and I want you to know you made a mistake,” she wrote. “I placed a great deal of trust in the SafeSport organization and this arbitration panel and was left utterly disappointed. “SafeSport and their policies were established to keep athletes safe and undermining their decision is the exact reason that victims continue to stay silent and perpetrators continue to believe they can behave in this manner and get away with it. “…I am disappointed but not shocked in the system that continues to result in an indeterminable number of rapes. A system that shames victim for their actions and sexuality and places the burden of proof on them while praising men’s athletic abilities, good character and concerns themselves with their reputation. This is exactly why I didn’t come forward in the first place.” [related_articles location=”left” show_article_date=”false” article_type=”automatic-primary-section”]
22 Mar 19
Press Telegram
Editor’s note: This is the second of two stories investigating SafeSport’s process for handling athlete complaints of sexual abuse. The first story examined SafeSport’s 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 SafeSport’s 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 panel’s ruling would be final. Under SafeSport rules, neither Roberts nor Burns could appeal the panel’s 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 didn’t feel right at all.” Ban overturned 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 SafeSport’s policies and procedures, the arbitration process and SafeSport officials’ performance and decision making both during their investigation and arbitration. RELATED: Team USA weightlifter Jennyfer Robert reported being raped, but SafeSport process only added to her anxiety 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. SafeSport’s determination that Roberts was sexually assaulted while she was incapacitated by alcohol consumption and sleep was “seriously undercut” by Fromme’s 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 SafeSport’s policies, procedures and supplemental rules would apply to the investigation and arbitration hearing but that USA Weightlifting’s 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.” SafeSport’s 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 Weightlifting’s by-laws and policies in April 2016 that defined non-consensual sexual contact or required consent. “USAW’s 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. SCNG’s policy is to not name the victims of sex crimes. Roberts, however, agreed to be identified. A gulf between investigation and arbitration panel’s decision The documents also underscore the wide disparity between SafeSport’s original ruling and the arbitration panel’s decision. “It’s like there were two cases but they’re 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[cq comment=”The following content will display as an info box.”] Related links Ban of Mission Viejo weightlifter Colin Burns for non-consensual sexual contact during Team USA trip was overturned Team USA weightlifter Jennyfer Roberts reported being raped, but SafeSport process only added to her anxiety Survivors, U.S. Center for Safe Sport clash over Jean Lopez reinstatement Athletes who survived abuse join together as advocates Mark Schubert is a legend for making US swimmers champions, but did he fail when they needed him most? [cq comment=”This is the end of the info box.”] 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 there’s a disconnect here,” Starr said referring to the Burns case. “There’s such a big variance between the (original) SafeSport outcome and the decision by the (arbitration) panel. They’re 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, it’s pretty clear that it’s time to re-evaluate these cases.”   Survivors, Starr continued “are not fairly represented in the system and if you don’t have that, it sets the tone that it isn’t safe. I mean it’s called the Center for SafeSport and there wasn’t anything safe there.” SafeSport’s 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 athlete’s sexual history. “It sends a really chilling message to victims,” Michele Landis Dauber, a Stanford Law School professor, said of the arbitrator’s questioning of Roberts. “It says if you report sexual assault or sexual abuse, your past behavior can be opened up and interrogated. It’s classic slut-shaming and the reason why it’s not allowed” in criminal cases. Said Laura Palumbo, communications director at the National Sexual Violence Research Center, “It’s 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 survivor’s 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 aren’t 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 they’re seeking in coming forward is ensuring that this person can’t 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 wasn’t believed, thinking that Roberts had a lot information confirming the validity of her story and even she didn’t get believed because she was drinking. So who is going to believe me?” The arbitration panel overruled SafeSport’s 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 center’s senior investigator and the point person on the Burns investigation, to testify during the arbitration hearing. “We didn’t bring Kathleen in which I thought was a mistake,” Roberts said referring to SafeSport’s decision. Still Joe Zonies, SafeSport’s attorney, Roberts said, “felt pretty confident this whole time. He didn’t 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. RIO DE JANEIRO, BRAZIL – APRIL 10: Colin Thomas Burns of the United States competes in the men’s 94kg weightlifting final of the South American Weightlifting Championship as a test event for the Rio 2016 Olympic Games at the Olympic Park’s Carioca Arena 1 on April 10, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) 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 city’s 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 McCoy’s 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. “Asleep” “in my room” Sandoval wrote back at 1:21 a.m. “What???????” 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 wouldn’t stop until he was done. “…He was going to continue, but I couldn’t 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 didn’t happen,” Roberts said. Pretending became harder when Roberts found Burns’ ball cap amid the room’s 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 that’s 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 Smith’s notes. “I found it in my room this morning,” Roberts told him, according to the notes. “That’s 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 didn’t 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) didn’t 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 Weightlifting’s Policies in effect as of April 11, 2016.” But it was Fromme’s testimony on Burns’ behalf that the arbitration panel cited repeatedly in their decision. Defense witness Kim Fromme testifies in the rape trial against two juveniles in Steubenville, Ohio. Fromme has testified in a number of high profile cases in defense of young men accused of rape where alcohol was involved. (AP Photo/Keith Srakocic, Pool) Fromme’s 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, Ohio’s 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. “Let’s hope for comparable outcome for your client.” “It’s 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 professor’s 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 Fromme’s 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 Fromme’s @UT Austin…Clinical psychologists should not be #rapeapologists,” Snehal Shingavi, a Texas English professor wrote on his twitter account. “I don’t know how she’s 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 legal limit for driving in California). She woke up at 4:15 a.m., three hours after the attack, in a local hospital with no memory of how she got there. In the Burns and Turner cases, Fromme testified that individuals in an alcohol-induced blackout are in a period of amnesia where they are fully conscious and capable of making short-term decisions such as consenting to sex as well as performing tasks like driving, but have no recollection of the period because they are unable to store long-term memory. Blackouts are not the same as passing out and persons can be in a blackout without exhibiting signs of incapacitation, Fromme said. “Her testimony was clearly intended to cast doubt on the facts,” Dauber said referring to the Turner case. “It raised doubts about Kim Fromme. It raised significant doubts for me about her willingness to testify in cases where the evidence does not support her theories.” Dauber’s point was underscored by an email from Fromme to Armstrong, Turner’s defense attorney. Under California law, attorneys are required to share with opposing counsel expected statements, opinions that expert witnesses will provide at trial. An attorney for Turner asked Fromme if the firm could use her written direct examination from a previous case to meet this requirement. “Mike, I think it would be a bad idea to give the DA even a generic version of the direct I wrote for US v Andrews,” Fromme wrote Armstrong. “It would be akin to sharing our entire poker hand in advance of placing our bets.” In the Burns’ case, Fromme used an algorithm based on evidence from the case to determine Roberts’ likely blood alcohol content at the time of the sexual encounter in Rio. “The expert witness never talked to me,” Roberts said Fromme “opined that (Roberts) experienced alcohol-induced blackouts on the night of the encounter with (Burns), and that a blackout would not necessarily impact (Roberts’) ability to consent to sex,” according to the arbitration panel decision document. Fromme testified that to be incapacitated by alcohol requires a blood alcohol content of .30. She told the panel “that, based on her review of the evidence (Roberts) was not overtly intoxicated at the time of the sexual encounter,” the decision document said. Roberts recalled a conversation she had with Smith, SafeSport’s senior investigator, after Fromme’s testimony. “I remember (Smith) saying how ridiculous it was to say I was drunk enough to have memory lapses but not drunk enough for a man to know he shouldn’t try to have sex with me,” Roberts said in an email. “Also, I was sleeping. I know Kathleen was upset they kept coming up with ‘new evidence’ as we got closer to the arbitration.” Yet SafeSport provided “no expert evidence to counter this evidence” by Fromme, the arbitration panel wrote in their decision. A review of Fromme’s testimony in the Turner case, however, offered several potential lines of rebuttal for SafeSport. Fromme while being questioned by a prosecutor in the Turner case acknowledged that  “I’m not a sleep expert.” She also said she had not done any research herself to verify the .30 blood alcohol content she has cited in multiple cases as the standard for being incapacitated. “I’m familiar with it through the literature,” Fromme said. “So lots of those are based on — composites of studies are based on, you know, hospital reports, et cetera,” Fromme continued. “So can you elaborate on that?” a prosecutor asked Fromme “I can’t,” she said. She was asked if she was familiar with the specifics of the composite studies or the hospital reports? “I’m not,” Fromme said. She also acknowledged “there are certainly individual differences and exceptions” to the .30 standard. “It seems very oversimplified especially when we think about the fact that for every individual your level of alcohol tolerance tends to fluctuate,” Palumbo said referring to the .30 blood alcohol standard. “I can imagine these individuals as athletes depending on how hard they were working out, how much food they’ve eaten, whether or not they’re properly hydrated all of that is going to be impacting how much they’re affected by alcohol. “I think the bigger challenge of course is we’re living in a society where there’s more of a focus and more interest and attention to whether we can measure intoxication to the point that someone may have arguably agreed to this sexual attraction versus keeping actually caring about the state of their sexual partners and wanting them to be a participant in the experience and not just trying to determine you can safely get someone and still legally have sex with them.” Jennyfer Roberts competes in the women’s weightlifting competition as a test event for 2016 Rio Olympics at the Olympic Park on April 8, 2016 in Rio de Janeiro, Brazil. (Photo by Buda Mendes/Getty Images) Consent during blackout? In testifying in cases, Fromme has frequently talked about an individual’s ability to not only consent to sex but perform fairly complex tasks while in a blackout. “Again — I know just enough to teach this to undergraduates, but in a blackout you could then go, you know drive a car, I’ve not seen this but I’ve heard performed surgery, fly an airplane,” she testified in the Turner case Fromme was asked if she had seen a study that someone had flown a plane in an alcoholic blackout? “I have not,” she said. “So to suggest that would be misleading?” the prosecutor asked. “I could say I’ve heard other experts testify to that,” she said. “It’s not something I have direct knowledge of, so I suppose that’s not something I should talk about.” But without a rebuttal witness from SafeSport, Roberts sensed that Fromme’s testimony resonated with the arbitration panel. “I remember thinking at the end, there was one question that the arbitrator asked of the expert witness that really concerned me,” Roberts. Chapman asked Fromme about Roberts telling her training partners about the incident in the first days after she returned from Rio. “So the arbitrator asked well oh, if someone told basically you were raped now you think you’ve been raped and you’ve been telling this story for now 2½ years when someone does that are they going to believe themselves the more and more they tell the story?” Roberts recalled. “Those words came from the arbitrator’s mouth asking the expert witness. Fromme said, “Absolutely yes, that’s what happened,” Roberts recalled. She remembered thinking, “Well that doesn’t sound good. Now the arbitrator’s questioning my credibility. “The arbitrator implied that I had been telling myself a lie for 2½ years, been telling it so long and so much that I believed it and I made everyone else believe.” A week later the arbitration panel issued its ruling, finding that based upon the testimony of Dr. Fromme, the witnesses who testified orally or by declaration, the video of restaurant scene, as well as the Center’s evidence, the Center failed” to prove by a preponderance of the evidence that Roberts had been incapacitated by alcohol. The center, the panel said, had also failed to prove that she was incapacitated by sleep. The SafeSport ban for non-sexual contact was overturned. Later this summer Burns will be allowed to compete and coach at the same competitions where Roberts planned to chase her Olympic dream. Devastated by the ruling A day after the arbitration ruling, Roberts wrote a letter to the panel members. “To say that I was devastated when I read your decision last night would be an understatement, and I want you to know you made a mistake,” she wrote. “I placed a great deal of trust in the SafeSport organization and this arbitration panel and was left utterly disappointed. “SafeSport and their policies were established to keep athletes safe and undermining their decision is the exact reason that victims continue to stay silent and perpetrators continue to believe they can behave in this manner and get away with it. “…I am disappointed but not shocked in the system that continues to result in an indeterminable number of rapes. A system that shames victim for their actions and sexuality and places the burden of proof on them while praising men’s athletic abilities, good character and concerns themselves with their reputation. This is exactly why I didn’t come forward in the first place.” [related_articles location=”left” show_article_date=”false” article_type=”automatic-primary-section”]