safeguarding vulnerable parties in arbitration proceedings
TRANSCRIPT
Safeguarding Vulnerable Parties in Arbitration Proceedings
By Catherine Pitre and Karen Bellehumeur
Overview
Introduction
Nature of Proceedings and Examples in UK sporting context
Procedural Context / Stages of a Safeguarding matter
Basic Principles relating to Victims
Assessing the Evidence
Strategies for Protecting Vulnerable Witnesses
Introduction
Catherine Pitre is a lawyer and the Head of Case Management at Sport Resolutions, an independent, not-for-profit, dispute resolution service for sport, based in the United Kingdom. Catherine has overall responsibility for Sport Resolutions’ case management function, at national and international level, and line management responsibility for its team. Catherine is a Board member of Women in Sports Law, and a mentor to uOttawa law students through its JurisMentor and Women’s Legal Mentorship programs. She has delivered training to sport-specific arbitral institutions and stakeholders in the UK and abroad, and has guest lectured for various Masters programs, including the FIFA Master & the ISDE Master in International Sports Law. Prior to joining Sport Resolutions in 2016, Catherine worked at the SDRCC and the Federal Court of Canada. She is a trained level 3 artistic gymnastics coach, and former gymnastics judge for Ontario.
Introduction
Karen Bellehumeur spent over twenty years as a Crown prosecutor in London, Ontario, specializing in cases of sexual violence and child abuse. Her law practice (Bellehumeur Law) now includes representing survivors of sexual abuse in human rights and criminal cases as well as taking on various roles in the area of safe sport. She is a member of the SDRCC safe sport advisory committee, victims’ counsel for a national sport organization, and sits on various national and provincial screening and disciplinary panels. She is also a member of the Ontario Independent Legal Advice for Survivors of Sexual Assault lawyers panel, and provides advice as part of the London Advocacy group reviewing London Police unfounded sexual assault cases. Additionally, Karen is a PhD Candidate at Western Faculty of Law, focusing on law reform for survivors of sexual violence. https://bellehumeurlaw.com
Nature of the ProceedingsNational Safeguarding Panel in UKInvestigationsRisk AssessmentsReviewsIndependent InvestigationsArbitrations
Procedural Context
Different approaches and perspectives
Disciplinary process – victim is a witness May be criminal investigation and charge Sport’s Code of Conduct different than Criminal Code May encompass more allegations Standard of proof differs Suspension may have been imposed Vulnerable victims may have already given statements
Procedural context cont’d
Tribunal’s role
Co-operation of parties
Balancing exercise
Confidentiality due to sensitive nature of proceedings
Prompt and appropriate investigations
Basic Principles Sexual offences affect victims in different ways
Emotional shutting down is a common response to chronic sexual or physical abuse
Recalling traumatic events can trigger overwhelming feelings
Prior victimization (to the incident in issue) can exacerbate a victim’s response
Safety and trust are issues for victims of trauma
Review of statements may require support
Testifying in a different room by CCTV can reduce stress and anxiety
Assessing the Evidence
Myths and stereotypes masked as ‘common sense.’ Inaccurate assumptions Reflected in societal perceptions Attributed to history of patriarchy Unconsciously applied when assessing credibility Rape culture – where sexual abuse is ignored,
legitimized, or blamed on the victim That culture impacts how victims are treated,
questioned, how their evidence is interpreted Likely responsible for perpetuating low conviction and
reporting rates
Examples of myths
What sexual abuse looks like:
Who is blamed:
How a victims should act afterward:
Perpetrators are strangers – Victims expected to avoid dangerous places
Most perpetrators are known to the victims (82%)
Real victims fight off their attacker – cry out for help Victims don’t fight a person they trust – also can experience
a freeze reaction
Myths cont’d Provocative clothing or flirty behaviour can imply consent Consent cannot be implied
Sexual abuse is an offence of passion – not that serious Sexual abuse is often related more to power and control
than passion
Women fabricate sexual assault our of regret or vindictiveness
Studies show that only 2 – 8 % of complainants lie – same as any other crime
Victims will tell someone right away – especially a parent Only 25 – 31% of children will report within the first year and
less than 10% of adults ever report
Myths cont’d
Victims will avoid contact with the perpetrator afterward and display anger toward him/her
Victims will show appropriate emotions when describing what happened
There are a wide range of psychological responses affecting how a survivor behaves affecting whether they report including: denial, shock, guilt, shame, embarrassment, grief, fear and feeling powerless
The Impact of Trauma
Trauma – an event that combines fear, horror or terror with actual or perceived lack of control
Causes an automatic brain response – beyond control
Impact of trauma cont’d
May cause victims to re-experience the trauma in their minds repeatedly resulting in Hyper-vigilance, fear, depression, anger, aggression, self-
destructive behaviour, feelings of isolation, poor self esteem, difficulty trusting others
Trauma can make complainants vulnerable and impair their ability to withstand examination –
The subject-matter is often the very cause of their trauma
The experience of testifying can cause re-traumatization
Understanding Childhood Sexual Abuse
Studies show that it gives rise to harm that lasts a lifetime:
Mental health Education Homelessness Physical health Legal problems Addiction Employment
How sexual abuse impacts children
Abuse in sport
2- 8% minor age athletes in Canada are victims of sexual abuse and harassment
98% of perpetrators were coaches, teachers or instructors
Coach-athlete dynamic gives rise to culture of unquestioning trust and power imbalance
Grooming often precedes abuse – gradual, escalating and difficult to recognize – involves athlete and gatekeeper
Grooming involves boundary violation and normalization of inappropriate conduct
Abuse in sport cont’d
Boundary violations are harmful – blurring lines of appropriate interaction with adults – makes young persons more vulnerable to future exploitation
Abusers find ways to make the victim feel complicit – this ensures that the victim will keep the secret
Once sexual abuse begins, the power imbalance combined with the victim’s self-blame and shame often results in a well-kept secret
Strategies for protecting vulnerable witnesses
Ensure they feel safe in the hearing environment.
Do not require them to tell their story over and over again.
Show compassion, courtesy and respect.
Try to understand and accommodate mental health issues – ie PTSD triggers.
Be sensitive to discrimination or oppression they have experienced including intersecting areas of race, gender, culture and ethnic background.
Strategies cont’d
Inform and prepare them for what to expect: Pre-hearing visit to hearing rooms The process and the role of cross-examination Special attention for children and vulnerable adults Identify decision-makers and tribunal staff Provide hearing timetable Rules about discussing testimony with other witnesses Notification about the decision when rendered Confidentiality of their testimony Public nature of the decision
Strategies cont’d
Empower them to make decisions and thereby have some control over the process
Do they wish to be accompanied by a friend or family member or other support person?
Do they wish to testify in a separate room to the respondent?
Strategies cont’d
Consider special arrangements for the hearing
Staggered arrivals of the parties to avoid contact Breakout rooms and allocated bathrooms of separate floors Testimony with respondent in different room (must be
accompanied by a representative – who can ask questions of the witness).
Decision drafting – leak prevention and protection of confidentiality – i.e. by anonymizing names using letters
Conclusion
The process matters to complainants!
A humane approach minimizes harm to vulnerable witnesses while ensuring a just result.
Thank You!