Olympian David Berkoff Believes USA Swimming Should Ban Brock Turner

David Berkoff is a two-time U.S. Olympian, winning four total medals (including two gold) at the 1988 and 1992 Summer Olympics. Aside from those awards, Berkoff’s history in the sport runs deep. He has been the head coach of the Missoula Aquatic Club since 1992 and has served two stints as a USA Swimming Board Member from 1992-1993 and 2010-2014. David is also a licensed attorney in the state of Montana.

David also counts himself as a swim parent for the last 11 years.

The editorial below reflects the perspective of its author and is not necessarily indicative of the perspective of SwimSwam, its owners, or any members of its staff. We will consider all well-written submissions at share [at] swimswam.com.

This past March a Santa Clara County, California jury composed of eight men and four women found former Stanford student and USA Swimming National Junior Team member, Brock Turner, guilty of three felonies stemming from his sexual assault of an intoxicated and unconscious woman in January, 2015.  Turner had faced up to 14 years in state prison and lifetime registration as a sex offender as a result of his felony conviction.  

This week—and to the outrage of many—Turner received a six-month jail sentence from presiding judge, Aaron Persky.  Turner, who apparently still denies any wrongdoing, will likely serve less three months in the local county jail, rather than time in state prison.  

Persky’s decision to give Turner what many call a slap-on-the-wrist sentence for what is a serious crime of sexual violence has led to the prosecutor, the victim, the two eyewitnesses, legal advocates, and the national media to cry foul.  A Change.org petition demanding the California Legislature to recall appointed Judge Persky has garnered 662,582 signatures, and that number is growing at a rate of more than 20,000 people per hour as of this writing.

To make matters worse, Turner’s father submitted a letter to Judge Persky which stated in part “[Brock’s] life will never be the one that he dreamed about and worked so hard to achieve…That is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”  To many, Dan Turner’s tone deaf relating of a sexual assault to “20 minutes of action” only highlights the broader problem of apathy and ignorance toward on-campus sexual assault.  

No doubt this story is tragic all around. But we need to remember, that Brock Turner made those choices and caused the results.  Much more importantly, a young woman who did nothing wrong will be emotionally scarred for life because of Turner.  

Three days ago, a statement from USA Swimming told SwimSwam that “Brock Turner‘s membership with USA Swimming expired at the end of the calendar year 2014… He was not a member at the time of his crime or since then.  USA Swimming doesn’t have any jurisdiction over non-members.”  While Leightman did state that should Turner ever apply for membership again his application would be denied, the implication was that USA Swimming would not pursue placement of Turner on the Banned for Life list for purely jurisdictional reasons.

USA Swimming has come a long way in the past six years in addressing the problems of sexual, physical, and emotional abuse in our sport.  While some may reasonably argue that USA Swimming’s efforts are “too little too late” or that lawsuits forced the change, there is little logical debate that USA Swimming’s Safe Sport and Board of Review process is now the flagship program in US amateur sports.  

USA Swimming’s Safe Sport leadership through Susan Woessner and others has been strong and effective.  There are many very good people in USA Swimming trying to do the right thing.  The result has been dozens of abusive coaches, volunteers, and swimmers being placed on the USA Swimming Banned for Life List.  Importantly, victims can now feel supported and safe when reporting abuse.  We are out of the dark ages and should never step back into the shadows on the issue of abuse.

I believe that USA Swimming’s reluctance to pursue an investigation into Brock Turner constitutes a disappointing step backward, and the reasoning behind the decision flawed for at least three reasons.

First, I strongly believe that USA Swimming’s jurisdictional argument against seeking a lifetime ban against Turner is simply incorrect.

In October of 2012 while serving as Technical Vice President for USA Swimming, I drafted and proposed an amendment to Article 304.2 of the Code of Conduct.  The purpose of the amendment was to specifically allow USA Swimming to have jurisdiction over former members of the organization.  In fact, by 2012 USA Swimming had pursued and banned a couple high profile former members.  The amendment I proposed to the Rules and Regulations Committee clarified that USA Swimming had the jurisdiction to pursue former members for violations of the Code of Conduct.  The proposal, with amendments in red, were as follows:

304.2

Any member, former member, or prospective member of USA Swimming is subject to the jurisdiction of the Board of Review.  Any member, former member, or prospective member of USA Swimming may be denied membership, censured, placed on probation, suspended for a definite or indefinite period of time with or without terms of probation, fined, or expelled from USA Swimming for life if such current, former, or prospective member violates the provisions of the USA Swimming Code of Conduct, set forth in 304.3, or aids, abets or encourages another person to violate any of the provisions of the USA Swimming Code of Conduct.  USA Swimming shall initiate Board of Review proceedings against any former member of USA Swimming when a complaint satisfying the terms of Article 306.1 is received.

The last sentence was added to clarify that USA Swimming’s Board of Review process would only be commenced when an actual complaint was received.

My proposed amendment to Article 304.2 was adopted with some stylistic and consistency language revisions.  The version of Article 304.2 enacted by the House of Delegates in 2013 and adopted in the 2014 Rule Book states the following:

304.2

Any member, former member, or prospective member of USA Swimming is subject to the jurisdiction of the Board of Review. Any member, former member, or prospective member of USA Swimming may be denied membership, censured, placed on probation, suspended for a definite or indefinite period of time with or without terms of probation, fined or expelled from USA Swimming for life if such person violates the provisions of the USA Swimming Code of Conduct, set forth in 304.3, or aids, abets or encourages another person to violate any of the provisions of the USA Swimming Code of Conduct. USA Swimming shall initiate an investigation of any former member of USA Swimming when a report required under 306.1 is received.

The 2015 and 2016 versions of Article 304.2 remain unchanged.  

Clearly, the changes to our jurisdictional rules in 2014 were made for the specific purpose of pursuing former members who violated the Code of Conduct.  USA Swimming has jurisdiction over Brock Turner as a former member notwithstanding its official position to the contrary.  

USA Swimming’s stated position is that because Turner committed his crimes after his membership had lapsed absolves USA Swimming of jurisdiction.  This too is incorrect based upon the plain language of the rules.

There is nothing in the USA Swimming Code of Conduct that precludes or limits the organization’s jurisdiction over former members for crimes they commit after their membership has lapsed.  In fact, the 2016 Rule Book specifically provides that a violation of Article 304.3.6 of the Code of Conduct occurs when “at any time past or present,” there is a conviction or where there are pending charges for a felony, or crime involving sexual misconduct.  

.6   Conviction of, imposition of a deferred sentence for, or any plea of guilty or no contest at any time, past or present, or the existence of any pending charges, for (i) any felony, …(iii) any crime involving sexual misconduct…

There is no language in this Article that requires that the conviction or pending charges involving a felony or sex crime be committed while a person is a member of USA Swimming.  To the contrary, the Code of Conduct clearly states that a violation of the Code occurs upon conviction of a felony “at any time past or present.”  

Thus, when reading Article 304.2 and 304.3.6 together, USA Swimming has jurisdiction over a former member who is convicted of or charged with a felony or sex crime “at any time, past or present”.  

By its plain language, the Code of Conduct only prevents USA Swimming from pursuing an investigation into former member Brock Turner where no complaint pursuant to Article 306.1 is made.  To conclude that USA Swimming lacks jurisdiction simply because Turner committed crimes after his membership lapsed would render the entire purpose of background checks meaningless and would create an unprecedented loophole for bad actors to be held less accountable.  

Second, failing to pursue Turner’s expulsion from USA Swimming creates inconsistent precedent.  As noted above, prior to the 2014 amendments, USA Swimming did pursue and ban former members for violation of the Code of Conduct after membership had lapsed.  Moreover, there are at least three other former swimmers on the USA Swimming Banned for Life List who were the perpetrators of sexual assaults.  Turner should not be given what seems like preferential treatment simply because his crime occurred nine days after his 2014 USA Swimming membership lapsed.

Third, USA Swimming needs to send a message—the right message.  Campus sexual assault can no longer be ignored or swept aside with the same old “drunk girls in college do stupid things they later wish they hadn’t done” attitude.  Sexual assault is not a crime about sex.  It is a crime of power, violence, control, and entitlement.  It leaves devastating and permanent scars upon the victim.  Sexual assault is just plain wrong.  

USA Swimming has the jurisdiction, the power, and the moral obligation to make a positive statement to its members, its athletes, and to the public about this issue.  As we head into the Olympic Trials and attention the Trials will bring to our sport, USA Swimming’s attempt to wash its hands of Brock Turner by claiming it lacks jurisdiction sends the wrong message to our members, our athletes, and to the public.  

An investigation into Brock Turner by USA Swimming is not just about Brock Turner.  It’s about changing the culture of sexual assault.  It’s about showing leadership when it comes to tough issues.  It’s about USA Swimming taking a stand and doing the right thing.  In my opinion, USA Swimming’s punt just plain missed.