Sheldon Kennedy and a Canadian tragedy revisited: a comparative look at U.S. and Canadian jurisprudence on youth sports organizations' civil liability for child sexual exploitation.

• Author: Preston, M. Bradford

ABSTRACT

National Hockey League player Sheldon Kennedy's 1997 revelation that his award-winning junior hockey coach had molested him for years created a national outcry in Canada. It resulted in the appointment of a special commission and declarations from the United States and Canada that this must never happen again. However, Kennedy was not alone; child sexual exploitation occurs at the hands of youth coaches across geographic and class boundaries and across individual and team sports.

Youth sports organizations, including schools, have approached the human and legal issues presented by child sexual exploitation in numerous ways. This Note analyzes the differences between--and strengths and weaknesses of--U.S. and Canadian courts' respective treatment of these organizations' actions both before and after sexual abuse is discovered. It also examines the degree to which youth sports organizations in both nations have acted to prevent future problems, specifically as compared to the recommendations of the commission formed in response to Kennedy's story. The Author concludes the Canadian judicial standard for youth sports organizations' liability ultimately is superior to the standard employed by U.S. courts.

TABLE OF CONTENTS I. SHELDON KENNEDY'S STORY A. A Young Athlete's Predicament B. The Revelation and its Aftershocks II. PURPOSE OF THIS NOTE III. BACKGROUND A. Youth Sports in the Twenty-First Century B. The Elite Level of Youth Sports C. The Elite Youth Sports Coach D. Child Sexual Exploitation 1. Victims 2. Perpetrators 3. Confluence of Youth Sports and Perpetrators of Child Sexual Abuse 4. The Elite Coach's Power Fosters An Environment for Sexual Exploitation to Occur 5. Opportunity and Existence of Child Sexual Exploitation by Coaches E. The Players First Report IV. ANALYSIS A. Jurisprudence in the United States 1. Public Schools in the United States 2. Private Organizations in the United States B. Canadian Jurisprudence 1. Public Schools in Canada 2. Private Organizations in Canada C. Analysis of Differences Between U.S. and Canadian Jurisprudence 1. Advantages of Each System 2. An Example of the Relative Advantages D. Schools and Organizations: Responses 1. Positive Change 2. Organizational Shortcomings 3. Potential Dangers V. SOLUTION: U.S. COURTS SHOULD ADOPT CANADIAN COURTS' USE OF VICARIOUS LIABILITY VI. CONCLUSION I. SHELDON KENNEDY'S STORY

A. A Young Athlete's Predicament

In 1982, when Sheldon Kennedy was thirteen years old, he left his rural home in Elkhorn, Manitoba, and traveled nearly two hundred miles to attend a hockey school near Winnipeg. (1) One of his instructors at the camp was Graham James, (2) who one day would be named The Hockey News' Man of the Year. (3) During the school year, Kennedy played bantam hockey in Elkhorn, and his junior hockey rights were held by a team sixty-five miles away in Brandon, Manitoba. (4) James coached another junior team, the Winnipeg Warriors, and in 1982 James arranged to have Kennedy's junior rights traded to the Warriors. (5) After the trade, James invited Kennedy to Winnipeg for a visit. (6) The teenager did not get along well with his father, and he was excited to get out of the house for a few days. (7) During that visit, and through 1989, when Kennedy was drafted by the Detroit Red Wings of the National Hockey League (NHL), James maintained control of the teenager's hockey career and molested Kennedy several times per week. (8) James continued to sexually assault Kennedy as often as possible through 1994. (9)

For Kennedy, there was no easy way out of this existence. Canadian junior hockey is the pre-eminent feeder system for the NHL, as Canadian universities do not offer hockey scholarships, and the junior season is viewed as the closest parallel to an NHL season. (10) Therefore, Canadian youth players see the junior leagues as their best route to the NHL. (11) James controlled Kennedy throughout his junior hockey career, first having him traded to the Winnipeg team and then to a higher-level junior team in Moose Jaw, Saskatchewan (more than two hundred miles in the other direction from Kennedy's hometown), after the Warriors moved there. (12) As Kennedy recalled the experience, James "kept me with him all the time, on all the trips. It was like we were married. It was unbelievable." (13) "He is the door you will never get through to your dreams unless you run into it." (14)

Kennedy could not elude James's reach and, at the same time, continue to pursue his dream of one day reaching the NHL. Kennedy realized his family would force him to quit his team (and, in essence, quit competitive junior hockey) if they learned of the abuse, and he was not eager to reveal a homosexual relationship--coerced or not--to his adolescent hockey teammates. (15) Sadly, Kennedy himself summed up best why he did not reveal to anyone what was happening: "You tell your mom and she makes you come home. You tell your friends and they will just portray you as a gay guy and nothing will come of it. It is just a very scary thing." (16)

Although Kennedy was a highly regarded junior player, (17) his NHL career did not live up to expectations--he "bounced around between the NHL and [the minor leagues] for ... seven seasons, with Detroit, Calgary, and Boston" (18) and gained a reputation around professional hockey as a hard drinker and loose cannon. (19) Such problems were the outward symptoms of deep-rooted emotional troubles: Kennedy described feeling "mixed up mentally" and "brutal" throughout his NHL career, and he considered suicide "many times." (20) Finally, in 1996 Kennedy confided in his wife, the police, and a psychiatrist. (21) James accepted a plea bargain and was sentenced to three and one-half years in prison. (22)

B. The Revelation and its Aftershocks

Kennedy's revelation stunned and mortified the world of Canadian junior hockey and Canada as a whole. (23) Within days of the story going public, the Canadian Hockey League (CHL) issued a press release declaring, "[I]t is both humane and imperative for the best interests of the league and its players" that the CHL do everything possible to ensure such a tragedy will never happen again. (24) To that and, in January 1997, the CHL "commissioned the Players First Report ... to confront the issues of harassment and abuse within the CHL." (25) The CHL hired prominent Canadian attorney Gordon Kirke (26) to prepare the report. (27)

In a front-page story the Toronto Star declared, "If there is one legacy to emerge from Kennedy's experience, it is that hockey must come to grips with the vulnerability of its players, and that it has next to nothing in place to help abused kids." (28) In the same story, Kennedy himself noted his desire to "heighten awareness." (29) His story "opened the nation's eyes to the pervasiveness of the traditionally taboo issue of sexual abuse and exploitation of young people ... [because few] would have believed that such an insidious and destructive crime could have infiltrated the CHL, an institution imbued with Canadian tradition and pride." (30)

The aftershocks of Kennedy's revelation were felt in the United States, too. New York Times sportswriter George Vecsey wondered, in light of Kennedy's story, "Whom do you trust? Every athlete, every parent, must ask this question." (31) Vecsey noted that youth sports only exist because of contributions from untold numbers of volunteer and low-paid coaches, and concluded, "These good people are going to find children and parents looking at them a little more carefully, but if the scrutiny can avoid anybody suffering like Sheldon Kennedy, it will be worth it." (32)

2. PURPOSE OF THIS NOTE

   In January 1997, hope was high that a new chapter had begun in preventing child sexual abuse. The secret was out. No longer would youth sports organizations in Canada or the United States allow sexual predators to use positions of trust to prey on innocent children. Although Sheldon Kennedy had suffered, his courage in coming forward "provided a major step" toward preventing similar tragedies in the future. (33)

   This Note revisits the optimism that was so apparent in 1997. Graham James's conviction and Sheldon Kennedy's admission that he was the victim of years of molestation at the hands of his coach surely should have served as a wake-up call to youth sports organizations in Canada and the United States.

   This Note also analyzes the treatment of the problem by the Canadian judicial system, specifically as compared with the U.S. legal system's treatment of the same issue. Can one learn from the other? Or have both nations failed to address the problem effectively?

   Additionally, in the context of U.S. and Canadian courts' treatment of youth sports organizations whose coaches or representatives sexually exploit child participants, the following questions must be asked: In the nearly ten years since this revelation, what, if anything, have these youth sports organizations done? Importantly, do they continue to expose themselves to civil liability resulting from this problem? This Note addresses both of these questions, and suggests how the current approaches to the problem of holding these organizations civilly liable for the actions of their employees and volunteers should be improved.

3. BACKGROUND

   A. Youth Sports in the Twenty-First Century

   Three observations about youth sports may be made without much debate: countless children are playing, numerous people donate their time, and most in the community believe participation will help a child develop into a good person. A recent study indicates that "an estimated 38 million youngsters in the United States participate in some type of sport.... They are coached by millions of volunteers." (34) One Canadian hockey parent's reason for encouraging his son's participation is representative of a common belief: "If your sons are involved in sports, they don't have time to get into trouble.... Keep them busy, and they...