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Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
A few months ago, my colleague Janice Rubin took a look at all of the industries that had been prompted to survey their own members on their own experiences with sexual harassment. Indeed, the variety in these industries was remarkable and ranged from theatre to funds management to media to Members of Parliament.
For me, it is the stories that are emerging from the world of female athletes that have hit home the hardest. As an athlete myself (ringette, soccer, rugby and triathlon) and as the mother of three competitive athletes (women’s gymnastics, ringette and hockey) I find the stories coming from these women most troubling. How can it be that these physically fit athletes who appear so strong and invincible in their respective sports are dealing with such dark and troubling violence and harassment in the background?
A few weeks ago, a publication ban was lifted on four female members of Alpine Canada who had been sexually assaulted and exploited by their former ski coach, Bertrand Charest. After the ban was lifted, the women opened up to the CBC’s Adrienne Arsenault about their experiences and their stories are gut-wrenching to hear. It is hard to imagine that the strong women who raced down ski hills bearing the Canadian flag were at the same time being victimized by their (our) national team coach. Charest is now serving 12-years in jail after being convicted of 37 charges involving nine victims.
We have also watched gymnasts in the US come forward with harrowing stories of what was going on behind closed gym-doors. In 2016 IndyStar broke the story of USA Gymnastics to the world. As a result of that mammoth story, we now know that over 350 of the USA’s top gymnasts, including three members of the gold-medal-winning London 2012 gymnastics team, were repeatedly sexually assaulted by their doctor Larry Nassar while they trained and wore the red, white and blue.
Well before the watershed of the 2017 #metoo movement, I remember reading the brilliant op-ed written by the Harvard Women’s Soccer recruiting class of 2012. These women had been the subjects of a sexually explicit “scouting report” produced by the men’s soccer team of the same year and distributed around campus. In the report, the female athletes’ perceived physical attractiveness and sexual appeal were rated and ranked. It was hard to believe at the time that even brilliant athletes from Harvard were bombarded by such overt, childish and sexist behaviours.
What Can Investigators Learn from the Harassment of Women in Sport?
As a sexual harassment and sexual violence investigator, my biggest take-away from these female athlete stories is the reminder that victims or complainants do not always fit into a neat- prototype. Not every incident of harassment or assault involves a powerful abuser and a weak victim; as the incidents above show us, victims can be national team members, Olympic gold medalists and Harvard student athletes. They can, at least from the outside, appear to be at the tops of their games.
These stories reminded me that in my investigation practice I have met many complainants that are strong business people or very skilled in their work and appear on all fronts to be excelling. They are not always the weak, meek or unskilled victims that I might have expected to see when I started conducting investigations. I have come to learn that only a small proportion of people who experience harassment actually come forward, and therefore it is not surprising that those who have chosen to do so are often those with more confidence.
I have also learned that sometimes even strong people have put up with inappropriate behaviour for a long time before coming forward. They have told me that they had been afraid to come forward for risk of losing what they have worked hard to obtain. In the case of athletes or other high performers, they may be less willing to jeopardize their invested time by coming forward when there is a competition or big event just around the corner.
While there is often an imbalance of power between a complainant and a respondent, I have also seen situations where the harasser was the person with the lesser amount of real power in the organization. I have met women in the top echelons of business who have had to deal with vile and incomprehensible comments from men who are significantly below them in the organizational hierarchy. Late last year, the Supreme Court of Canada (SCC) in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC overturned a 2016 decision from the BC Court of Appeal that had decided that a power imbalance was necessary for harassment and discrimination to take place. As was explained by my colleagues Megan Forward and Janice Rubin in their March 2017 blog the Court of Appeal’s flawed understanding was based on the presence of determinants of power that are largely associated with economic power, for example, the ability to control the finances, set work schedules and to dictate other terms of employment. In my opinion, the SCC has set the record straight and endorsed the fact that even though someone may be higher up in the hierarchy of an organization, he or she may in fact have less power based on their gender, their age and the cultural norms of the organization.
It is also worth noting that being really good at something, whether it be business, operational or mechanical skills or sport does not exclude someone from being a potential victim or target of harassment. In fact there is an argument to be made that this might make them even more likely to be a target from someone who is threatened by their success or skill level.
Investigators need to understand that every situation is different and this makes it even more important to keep an open mind throughout the investigation. If an investigator makes his or her determination at the outset of the investigation, without properly understanding that not all complainants/ victims are weak, the worry is that they will miss the opportunity to properly understand the dynamics at play. What we have learned from the stories emerging from women in sport is that even the strongest and smartest gold-medalists can be vulnerable to harassment and violence.
 Although I have highlighted stories about women in sport, of course I am also thinking of the men in sport who have experienced unthinkable harassment and violence, including Sheldon Kennedy, Theo Fleury and Greg Gilhooly.
About the Author
Jennifer White is an Ottawa-based athlete and lawyer at Rubin Thomlinson LLP who investigates allegations of harassment, sexual violence, discrimination and code of conduct violations.