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.”

SafeSport senior investigator Kathleen Smith found that there was “no credible evidence in the record that (Roberts) consented

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.

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 SafeSport 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 SafeSport 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.

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.”

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.”