Tracking Athletes’ Sex Offenses

News that Oregon State’s top pitcher was a sex offender startled the community and prompted questions: How closely should institutions monitor sexual assault convictions by their athletes?

June 20, 2017
 
Luke Heimlich

When news surfaced recently that Oregon State University’s star baseball player was a convicted sex offender, the local newspaper asked the institution: When did you know?

At age 15, Luke Heimlich molested a 6-year-old girl -- a family member -- The Oregonian unearthed. Heimlich, one of the nation’s top pitchers, hadn’t properly registered his status when he moved from Washington State, and so law enforcement flagged him in public court records, which alerted the paper. Reporters investigated, uncovering Washington court documents.

The baseball coach and athletics director at Oregon refused to comment. The university only released a statement.

Their silence raises concerns among sexual assault prevention advocates, as some have accused college athletes of receiving preferential treatment and being shielded from consequences, even for an offense as severe as sexual assault.

Athletes, particularly at larger, Division I institutions, often are campus pseudocelebrities, and advocates argue that they should not be revered or given special privileges if they committed a sex crime. Federal guidance suggests students should not be barred from an education because of criminal records, but because of their campus positions, athletes are often held to a higher level of scrutiny -- and should be, advocates say.

Obligations for Institutions

Officials are under no obligation to investigate athletes to any particular degree, as the National Collegiate Athletic Association has never issued a blanket mandate to its membership.

Legal experts say institutions rely on all students to be truthful and disclose past indiscretions, and federal law demands they do so for some sex offenses. Running formal background checks would prove pricey and cumbersome -- they’re also imperfect. Crimes committed when the person was a minor, or incidents in other states, could go undetected.

Athletics departments are vetting their recruits, though, at least through conversations with the student’s family and coaches to gauge their personalities and backgrounds when an athlete is interested in a program. The purpose is not necessarily to check for a criminal record. In some cases, a quick internet search could reveal a criminal past, particularly with high-profile students.

Most court orders for sex crimes force the offender to inform law enforcement where they’ll be living. The 2000 federal Campus Sex Crimes Prevention Act also requires colleges to publicize where students can find information about registered sex offenders on campus.

An institution’s responsibility is to ask about convictions and adjust to ensure the student complies with the stipulations of the court order, said Scott Lewis, a lawyer and partner at the National Center for Higher Education Risk Management Group, which advises colleges on legal matters.

Some courts have forbidden an offender from being within a certain number of feet of a minor or a school or day care, and so in that case, a college would need to accommodate the order if, for instance, a younger student was enrolled in the same class, Lewis said.

That can grow more complex for athletes who may travel for games -- again, the college must ensure that any court restrictions aren’t violated, Lewis said.

Though many coaches and administrators take time to learn about their players, there’s an incentive for them to stay oblivious to prior sex offenses, said Laura Dunn, founder and executive director of SurvJustice, a nonprofit dedicated to sexual assault prevention.

The standard for being found liable under the Title IX of the Education Amendments of 1972, the federal law prohibiting gender discrimination, is actual knowledge of events. Thus, an institution could theoretically claim ignorance and escape punishment if it is accused of violating Title IX, Dunn said.

“Unfortunately what we assume is true -- that institutions care about their students and care about safety -- is actually not always true. Intentionally not caring keeps you from being sued. It’s an outrageous kind of circumstance,” Dunn said.

For athletic officials to purposefully avoid questions about sexual assault would be odd, since typically they want to know about other potential barriers with their athletes, like a learning disability or drug use, Lewis said. He said it is “bad faith showing” if colleges dodge their duties.

Often, athletes are showered with free gear and meals and perks like special classes, workout areas and tutoring, Dunn said. A former athlete herself, Dunn was sexually assaulted during her freshman year at the University of Wisconsin at Madison.

Once someone has finished jail time or their sentence, they should be allowed to reintegrate back into society and attend a college, but be banned from its sports team, which Dunn called a “privilege.”

“The university is elevating you,” she said.

Universities are not legally obligated to publicly make statements regarding sex offenders, particularly considering that they could run afoul of the federal Family Educational Rights and Privacy Act, said Joseph Storch, associate counsel in the office of the State University of New York’s general counsel.

Oregon State, in its statement about the situation, did not name Heimlich but referenced news coverage of his offense. At his request, Heimlich did not pitch in a recent game against Vanderbilt University, but he remains on the team. Once considered a top pick for Major League Baseball, he has so far not been drafted.

The statement calls the Oregonian account of the crime “disturbing.” It states that when a student is a registered sex offender, the student affairs and public safety offices meet with them to “mitigate risks.”

“I want to make clear that each day the safety and security of our students at Oregon State University is our No. 1 priority. Our policies and procedures provide a safe learning environment for our community and seek to ensure that all prospective and current students are treated fairly and equitably,” Oregon State President Ed Ray said in the statement.

The statement did not mention if or when the university learned of Heimlich’s conviction.

“My philosophy,” said Matt Gregory, the dean of students at Texas Tech University, “is what did you know, when did you know about it and what did you do with it? That’s how to handle it properly.” Gregory served as a conduct officer for most of his career and participated in a Southeastern Conference work group that examined the rules for athletes who had committed sexual assault.

Gregory said he would always welcome public records requests about an incident to ensure his institution was operating “above board.”

No one in a student conduct office would want to show favoritism to athletes, Gregory said. He said he wanted to separate students from their campus affiliations, like student government or athletics, and focus only on behavioral infractions.

“I see them as my students,” Gregory said.

The U.S. Department of Education has issued guidance indicating that universities should try to reduce the scope of questions on criminal background. A 2016 report details the disproportionate rate at which people of color are convicted and points out that an institution could unintentionally discriminate by barring anyone with a criminal history.

The report notes that criminal background checks are never comprehensive. The Federal Bureau of Investigation maintains a records repository, but it is drastically incomplete. States do not always publish such information digitally, either.

"It’s complicated -- there’s no … perfect product off the shelf for background checks,” Storch said.

There have been efforts to both remove barriers for offenders and make institutions more vigilant of their status.

SUNY will no longer ask about felony convictions on its admission applications, but it’s not quite in the mold of the “ban the box” movement. Instead, some are calling it “moving the box,” because SUNY will still inquire about convictions if a student wants to live on campus or participate in certain internship or clinical programs, said Storch.

Storch helped advocate for a new comprehensive campus safety law In New York. In part, it forces institutions to note on transcripts if students committed violations that would also count as certain crimes under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, and was suspended, expelled or has a punishment pending against them.

The violation is not described on the transcript, a deliberate choice, Storch said, because it forces the institution to find out more information from the college where a student transferred from.

Institutions across the country are supposed to alert another college if a student is found guilty of sexual misconduct and attempts to transfer out, Lewis said. He advises his clients to note any pending investigations against students.

“My athletics clients ask, some coaches ask -- ‘Do I have to call that school?’ No one wants to be the bearer of bad news,” Lewis said.

The Southeastern Conference no longer allows its member institutions to accept transfer athletes with a history of violent acts, including sexual assault. Gregory, of Texas Tech, served on the SEC work group that proposed the rule change and said all the representatives agreed that this was a part of institutions doing their due diligence.

But the NCAA hasn’t issued any associationwide decrees regarding vetting of athletes.

An NCAA spokeswoman, Gail Dent, referred Inside Higher Ed to the association’s sexual violence prevention guidance. She advised a reporter to talk with individual institutions about their policies.

The NCAA was already disinclined to act on sexual violence policies, but under President Obama, it was pressured to do so, said Dunn of SurvJustice. Less incentive exists under the new administration, Dunn said.

Only institutions like Baylor University and Pennsylvania State University, both of which have been rocked by sexual assault scandals, have any motivation to reform, she said.

Athletes modeling positive behavior and education can combat sexual crimes, Storch said. SUNY athletes participated in the Yards for Yeardley program, named for Yeardley Love, a University of Virginia lacrosse player who was killed by her ex-boyfriend just weeks before she was due to graduate in 2010. Sports teams are charged with running one million yards in a 30-day span while promoting information about relationship violence and the One Love Foundation, which runs the yards program.

“Progress may come from athletes, too,” Storch said.

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