Editor’s Note: Caroline Polisi is a federal and white collar criminal defense attorney in New York City. She frequently appears on CNN as a legal analyst and is an anchor at the Law and Crime Network, providing live legal analysis on the country’s high profile court cases. The views expressed in this commentary are her own.
“Talk is cheap.” Those were the words Olympic gold medalist Aly Raisman had for USA Gymnastics president and CEO, Kerry Perry, while delivering her victim impact statement at the sentencing hearing of Larry Nassar, the former USA Gymnastics chief medical coordinator accused of sexually abusing more than 100 former patients. She argued USA Gymnastics was “rotting from the inside” and profiting off her success while ignoring her suffering.
USA Olympic gymnast McKayla Maroney’s impact statement went even further. It included a direct and unequivocal assault on the institutions that she claims willfully ignored, and therefore perpetuated, Nassar’s abuse: Michigan State University, USA Gymnastics, and the United States Olympic Committee.
In short, both Raisman and Maroney’s statements point to a system of institutional complicity, whereby the organizations surrounding Nassar perpetuated his heinous and criminal conduct. As more and more details emerge surrounding the administrative policies and procedures that were the necessary backdrop to Nassar’s scheme, we need to ask ourselves how our institutions could have so systematically enabled this kind of criminal behavior for so long, and how we can prevent it from happening in the future.
According to a Detroit News investigation, at least 14 Michigan State University representatives received reports of sexual misconduct by Nassar in the 20 years leading up to his arrest. A Title IX investigation at MSU in 2014 cleared Nassar of any policy violations after he was accused of inappropriately touching a patient. Yet Nassar, who began working for the USA Gymnastics team in 1995, was not fired until 2016. An attorney for Michigan State has defended MSU’s response to Nassar in a letter to the Michigan attorney general.
During his tenure as the team physician for USA Gymnastics, Nassar was allegedly allowed to examine and treat athletes alone in private rooms, in violation of the organization’s standards of conduct. In an unrelated 2013 lawsuit, USA Gymnastics officials testified that the organization routinely dismissed sexual abuse allegations as hearsay if they did not come directly from a victim or the victim’s parents.
Nassar abuse survivor Olivia Cowan did not parse words when she confronted MSU and USA Gymnastics: “I want MSU and USAG to know what they have done is on the very same level of accountability as the crime Nassar has committed.”
“Complicity,” much like “collusion,” is not a crime per se in our criminal justice system, and it therefore occupies a slippery space in our collective understanding of accountability. The Harvey Weinstein lackeys who, for example, helped him lure victims by creating a false sense of security for them, only to leave them alone with a known sexual predator, will not be judged in a criminal court of law, but rather the court of public opinion.
Similarly, MSU and USA Gymnastics will not face criminal charges for their part in Nassar’s actions, though they are facing multiple civil law suits from over 100 victims of his abuse. The charges vary from allegations of intentional infliction of emotional distress, to negligent failure to warn or protect, to sex discrimination in education under Title IX.
Maroney’s civil suit alleges that USA Gymnastics engaged in a “conspiratorial and fraudulent attempt” to hide Nassar’s “propensity to sexually abuse children, and prior sexual misconduct with children, from public scrutiny and criminal investigations.”
In response to several of these suits, USA Gymnastics has argued in court filings that Michigan’s three year statute of limitations absolves it of liability, and that it was not legally obligated to inform MSU about the abuse.
And MSU has argued that it is completely shielded from civil liability because it is a state institution; under the opaque legal doctrine of sovereign immunity, some state actors are protected from civil and criminal prosecution.
As we now begin the public reckoning of discerning who knew what when, the litigation will play out in the post #MeToo and #TimesUp era, in which “due process” concerns have taken a back seat to choosing to believe the victims. Unlike the criminal standard of “beyond a reasonable doubt,” the civil cases will proceed under a preponderance of the evidence standard, which means that the plaintiffs will have to show merely that it was more likely than not that MSU and USA Gymnastics knew or should have known about the abuse.
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Outrage fatigue is a real phenomenon, but if we’ve learned anything from the #MeToo movement, it is that there is strength in numbers. If the collective voices of Nassar’s victims are any indication, there is still enough outrage to hold MSU and USA Gymnastics accountable for their complicity in his unprecedented career of abuse.