Sexual abuse is difficult for any organization to prevent, is rising, and the consequences of failing to prevent sexual abuse are significant and growing. But National Governing Body sexual abuse risk is even more challenging.
NGB sexual abuse risk starts the same as for other organizations, involving all the risks of looking after minors and vulnerable adults in their direct care. But NGB sexual abuse risk also includes, in California and elsewhere, their member’s sexual abuse risk; depending on how many members the NGB has, that might multiply their sexual abuse risk by 1,000x. But their risk doesn’t even end there because, though NGBs face all the legal, reputation, disruption, and financial consequences if their members fail to prevent sexual abuse, most NGBs currently have limited practical ability to influence how well their members prevent sexual abuse. Given the resources available to some members and the variability of how well they implement protection, the 1,000x might be multiplied by another 2 to 5x.
This situation results from what NGBs are. NGBs develop and promote a particular sport, for example, swimming or gymnastics, in the US. To ensure high coaching standards and that everyone is coaching the same sport and observing the same rules, NGBs require coaches to be registered directly with them. Also, to ensure adequate protection for minors and vulnerable adults from sexual abuse, the Safe Sport Act requires that NGBs require that their members, where coaches work, adopt “safe environment” programs.
Based on the outcome of Brown vs. USA Taekwondo, the combination of coach registration and Safe Sport Act requirements creates a “special relationship” between NGBs and their member clubs’ coaches. The result is that NGBs have a duty of care to keep minors and vulnerable adult sports club members safe from sexual abuse by the coaches the NGBs have a special relationship with.
The Problems with NGB Sexual Abuse Risk, Safe Environments, and the Duty of Care
There are three problems with safe environments for NGB sexual abuse risk. Two of them make it unlikely NGBs can meet their duty of care to minors and vulnerable adults.
1. 100% Safe Environment Compliance isn’t Possible
There are many reasons why sports organizations don’t fully or effectively implement safe environments.
For example, cognitive biases mean many club administrators are sure the way they protect children from sexual abuse is sound. (See this article on “Ten reasons we aren’t better at preventing sexual abuse,” point 1). Whether because of cognitive biases or other reasons, the result is that while most clubs will fully implement a safe environment program, some don’t.
In addition, NGBs don’t have the resources to effectively enforce 100% compliance because they have too many members to monitor which are complying and which are not.
In terms of an NGB’s duty of care, when NGBs know not all their members are complying even with the basic safe environment requirements, can they meet their duty of care if they take no action?
2. Safe Environments Don’t Keep Children Safe from Sexual Abuse
Even if NGBs could achieve 100% safe environment compliance, safe environments aren’t enough, on their own, to keep children safe from sexual abuse. 95% or more of youth-serving organizations use a safe environment approach to prevent sexual abuse, yet adult-on-child sexual abuse has doubled in the last ten years, and child-on-child sexual abuse has increased five times.
Foreseeability is another duty of care issue. When an organization can foresee harm to those it owes a duty of care, it must address that risk of harm. If safe environments aren’t enough to prevent sexual abuse from rising, are NGBs adequately addressing the risk of harm by using them? Further, if alternative approaches are recognized as being more effective at preventing harm (see below), shouldn’t NGBs use them to meet their duty of care?
3. Safe Environments are Designed to Protect Children, not Organizations
Even if safe environments were as effective as they could be at preventing sexual abuse, no prevention system works all the time, and safe environments are designed to protect children, not organizations. As a result, safe environments convey no protection for the legal, reputation, disruption, or financial consequences to organizations that fail to prevent sexual abuse.
The Muted NGB Response
If, as an NGB, you knew:
- what you are required to get a club to do (create a safe environment) couldn’t achieve what you and the club both want to achieve (keep children as safe as possible from sexual abuse) or potentially meet your own duty of care; and
- how significant the costs of failing to prevent sexual abuse are; and
- that you will face all the same consequences as the club where sexual abuse happens
…you would look for a way to ensure sexual abuse was as unlikely as possible at every club and, if it nonetheless happened, that you and the club were as well protected as possible.
For example, you’d find the framework that was acknowledged as the best practice for preventing adverse events like sexual abuse and protecting organizations from their consequences; it is an approach known as enterprise-wide risk management or ERM. You’d help every club to understand how to use the framework, and you’d provide access to the tools they’d need to maintain their framework over time. Widely implemented, the result would be better-protected children, members, and NGBs.
And yet, though some NGBs provide their members with materials that help them go beyond the required safe environment controls, few currently go materially further than a little beyond.
There are Understandable Reasons for NGB's Muted Response
There are several understandable reasons for NGB’s muted response.
Brown vs. USA Taekwondo is a relatively recent decision and only applies, in theory, in California. Consequently, outside California (though California is far from the only State with similar “special relationship” provisions), there may be a concern that, by suggesting more detailed protection activities, NGBs might potentially hasten confirmation of the same “special relationship” determined to exist in California by Brown. So, by avoiding presenting detailed additional practices, some NGBs may hope to avoid liability if sexual abuse happens at one of their member clubs.
This is a somewhat understandable approach, if difficult to explain. The problem is that NGBs are here caught between:
- their desire to protect children from sexual abuse as well as possible; and
- their limited risk-bearing ability (most are not flush organizations, and insurance is harder to obtain, provides less coverage, and is far more expensive than it used to be).
The difficulty with trying to avoid liability by avoiding presenting more detailed practices seems to be that, though Brown vs. USA Taekwondo was a California case, given the direction of public sentiment and rising expectations around sexual abuse and how plaintiffs’ attorneys can be guaranteed to make the same argument in Brown in other States, it seems unlikely similar provisions won’t apply in most places over time. So, do NGBs protect themselves better by preventing sexual abuse as comprehensively as possible or hoping to avoid liability when abuse happens?
Another reasonable NGB concern is that, if not all clubs can or will fully implement a safe environment approach now, how will clubs be persuaded to implement a more sophisticated system? Will clubs be motivated enough to adopt new practices, even after they learn they have no protection from the growing legal, reputation, disruption, and financial consequences of failing to prevent sexual abuse – which is rising fast? Further, noting few sports clubs have access to risk management expertise, can the process be made easy enough so they can establish and maintain a best practice system?
In addition, NGBs currently cannot see how well most of their members are using safe environment controls; how will they verify safe environments and more sophisticated approaches at scale?
What would NGBs Recommend?
It’s all very well saying “do more,” but sports clubs are not risk management experts; expecting them to know what “more” could mean is unreasonable, so what recommendations would NGBs make?
Here, NGBs run into the same problem that exists across all sectors working with minors and vulnerable adults. Though measurement in some pockets of sexual abuse protection activity is extensive, no one has measured sexual abuse risk management performance sufficiently broadly to identify the most effective additional practices beyond safe environments. This matters because NGBs cannot ask their members to “do more” if “more” delivers too little or no benefit.
Unexpectedly, this is where the gap between safe environments and risk management best practices, which is so significant, is, bizarrely, helpful.
By way of quick background, if you suppose that safe environments are the first run on a ladder of risk management sophistication and effectiveness, traditional risk management is a few steps up, and risk management best practices are a few more steps up. I say this because no one has thought to measure the difference in performance between safe environments and risk management best practices because the gap is so wide; only the difference between traditional risk management and risk management best practices has been measured.
Risk management best practices are more effective at preventing adverse events like sexual abuse than traditional risk management. Risk management best practices are also the most effective way to protect their users from the consequences of failing to prevent adverse events. Organizations that use risk management best practices achieve their objectives more often than organizations using traditional risk management and are more trusted and highly valued.
Safe environments are so far short of risk management best practices, there is significant scope to improve child protection and enhance member and NGB protection if NGBs can find ways to help their members use risk management best practices.
In an Ideal World
In an ideal world, every sports club would use risk management best practices to manage sexual abuse risk, and would therefore be confident they:
- fully comply with their safe environment obligations;
- have the information to decide how far beyond the safe environment minimum standards they want to go; and
- are able to effectively implement their chosen practices, resulting in them protecting children and vulnerable adults from sexual abuse and themselves from the consequences of failing to prevent sexual abuse as well as possible.
In an ideal world, every NGB would be confident:
- it was protecting the minors and vulnerable adults in its care, for example in its elite programs, as well as possible;
- all its members were complying with all their safe environment requirements and fully optimizing their ability to protect minors and vulnerable adults beyond safe environment requirements without the NGB having to provide any protection guidance to members; and
- they were as well protected as possible from the consequences of sexual abuse, whether of a minor or vulnerable adult in their care or in the care of one of their club members.
Also, the practices available to protect children, vulnerable adults, and organizations would constantly improve in this ideal world. NGBs and members would know which of all possible methods across all youth-serving sectors was the most effective for their sport or situation.
Please get in touch with us if you want to learn how BOKRIM helps NGBs enable their members to use risk management best practices to protect minors, vulnerable adults, and themselves as well and thoroughly as possible.