This installment will look at the strict liability nature of anti doping within sport.
Article 2 is entitled Anti-Doping rule Violations. The key provisions within Article 2 include Article 2.1.1.
Article 2.1.1 reads: It is each athlete’s personal duty to ensure that no prohibited substance enters his or her body. Athletes’ are responsible for any prohibited substance or its metabolites or markers found to be present in their bodily specimen. Accordingly, it is not necessary that intent, fault, negligence or knowing use on the athletes’ part be demonstrated.
The pragmatic implications of Article 2 mean that the mere presence of a prohibited substance in the athletes’ specimen is proof of doping, unless the contrary can be proven. This has the effect of reversing the burden of proof from a traditional starting point of innocent until proven guilty, to a draconian, guilty until innocence can be established.
The consequences for an athlete convicted of doping are severe and can extend to incarceration. The scale of the problem is often cited as a rationale for the implementation of this strict liability rule. I would suggest that just because the problem is widespread it is not sufficient justification to reverse the burden of proof. Clarity is the main attraction of a system where the mere presence of a banned substance in an athletes’ system leads to a positive finding.
Imagine a situation where crime levels had increased to such a level that the legislature enacted laws where citizens could be convicted of murder despite having no moral culpability (moral culpability being one of two essential elements for murder, the other being a guilty act). Athletes’ are not given a chance to show a lack of intent or lack knowledge and receive bans for the mere presence of the prohibited substance.
WADA say that to prove intentional ingestion as well as presence of prohibited substance would undermine the fight against drugs. I would suggest that administrative inconvenience and disciplinary convenience cannot be advanced as legitimate reasons for the removal of the mens rea.. Athletes’ must be given an opportunity to show a lack of fault or intent. The raison d’etre for the World Anti- Doping Code is punishment for those administering substances with the express aim to improve performance. The current system punishes athletes’ regardless of their intention to improve performance.
Posts
