Geography Determines Justice for Boy Scout Abuse Victims

By Ashley Powers
Bangor Daily News
October 21, 2012

http://bangordailynews.com/2012/10/21/news/nation/geography-determines-justice-for-boy-scout-abuse-victims/

[national database - Attorney Kelly Clark]

[Geography determines justice for Scout abuse victims - Los Angeles Times]

Ron Morgan and Kerry Lewis grew up in adjoining states — one in Idaho, the other in Oregon.

Both belonged to Boy Scout troops during the 1980s, and decades later, both alleged in lawsuits that the Scouts failed to protect them and other boys against known molesters, citing detailed evidence from the organization's confidential files.

In 2010, Lewis won a jury verdict of nearly $20 million against the Scouts, the largest such award in the organization's history. Morgan's case was never considered on its merits. The Idaho Supreme Court ruled in 2009 that, under state law, it was filed too late.

"Our state … turned us away," Morgan said. "His didn't."

With the release this week of more than 1,200 confidential files on suspected sexual abuse from past decades, the Boy Scouts of America faces the prospect of a new wave of lawsuits and potentially costly damages. But as in past child sex abuse cases, alleged victims' ability to get their cases before a jury will vary dramatically by state.

Many states have strict statutes of limitation on such allegations, and experts say the likelihood of even finding a lawyer to take decades-old cases can be difficult.

Multimillion-dollar verdicts are possible in states such as Oregon and Washington with loose time limits — especially if juries find the Scouts acted recklessly and award punitive damages.

But recourse for alleged victims could prove far more elusive in states like Alabama and New York, unless their tight time limits are changed or set aside.

"Geography determines justice. That's the problem," said Paul Mones, an Oregon-based attorney who represented Lewis.

Defense attorneys argue that statutes of limitation exist for a reason: It's hard to mount a defense against old accusations, particularly for institutions that may have severed ties with the alleged abuser decades ago. Key witnesses are often infirm or dead, documents have disappeared and time has eroded memories, said Don Steier, who represents priests accused of abuse in the Archdiocese of Los Angeles.

"No one wants it to be more difficult for children to seek justice," said Darren McKinney, a spokesman for the American Tort Reform Association, a coalition that supports limiting civil liability. "I think we want justice available to all, not just the accuser."

For the Scouts, the financial stakes are considerable and the legal terrain daunting.

To settle similar claims in the last decade, dioceses in the Roman Catholic Church were forced to file for bankruptcy and sell off property. The church scandals and the conviction this year of retired Penn State University assistant football coach Jerry Sandusky for child sexual abuse have made judges and jurors more sympathetic to allegations of sexual abuse and institutional coverups, plaintiffs' attorneys said.

But in its 2010 treasurer's report, the Scouts' National Council said the cost of resolving suits then pending against the organization would probably be covered by its insurance and reserves, as the Lewis verdict was. If the Scouts need to dip into other funds, the report said, officials could probably do so without harming the organization's finances or operations.

In December 2009, the Scouts' total assets were valued at nearly $1 billion, according to testimony in the Lewis trial. That year, the Scouts set aside $65 million to pay for settlements and jury awards.

The organization's exposure depends largely on its insurance policies, the details of which are not public. Since the late 1980s, most commercial insurance policies have not covered sex abuse claims. But it's common now for nonprofits that work with children to buy specialty insurance to fill that gap.

In a statement, Boy Scouts spokesman Deron Smith said the group, which since 2010 has required members to report suspicions of abuse to law enforcement, was not focused on potential lawsuits, "but rather on continuing to enhance our multitiered policies and procedures to help keep kids safe."

"As for statute of limitations," Smith added, "the BSA respects the decisions which are made by lawmakers and the judicial system."

In general, it's difficult to bring a lawsuit now based on abuse that occurred in the 1970s and 1980s, said Marci Hamilton, a professor at Yeshiva University's law school. "I am floored at how many strong cases are capable of going nowhere because of a statute," she said.

In some states, lawyers can argue that normal time limits shouldn't apply because an institution covered up sexual abuse.

Minnesota attorney Jeff Anderson said he recently persuaded a Nevada judge not to dismiss a lawsuit by a man who said a Catholic priest groped him in the 1980s. In court papers, he argued that only in 2008 did the man learn that church officials knew that the priest had previously been accused of sexually assaulting others.

A number of states have embraced what are called "discovery rules," allowing alleged victims, regardless of their age, to sue once they learn of links between past abuse and present psychological problems.

Oregon has had a discovery rule for years, and without it, the Lewis case might have gone nowhere. Lewis alleged that in 1983, troop leader Timur Dykes confessed to a Scouting official that he had abused 17 boys. Nevertheless, he continued to participate in Scouting activities. Boys worked on their merit badge requirements at his apartment and sometimes slept over.

California's statute limits child sexual abuse suits to plaintiffs who are younger than 26. But the state also has a discovery rule similar to Oregon's, and after the Catholic Church scandal broke, was the first to pass "window legislation," lifting the statute of limitations for one year so victims could sue organizations that failed to protect them from known molesters.

Hundreds of lawsuits were filed against Roman Catholic dioceses, the Salvation Army, the Seventh-day Adventist Church and the Boy Scouts. Hamilton said only two other states have adopted similar window legislation: Hawaii and Delaware.

Attempts to permanently loosen statutes of limitation for child sexual abuse stalled this year in New Jersey and New York. In California, Assemblyman James Beall Jr. (D-San Jose) said the Catholic Church helped quash his bill to raise the age limit of suits to 35. "We weren't able to get it through the political process," Beall said.

In 2007, Idaho also adopted a discovery rule like Oregon's. Morgan's lawsuit was the first to test it.

According to Morgan's lawsuit, two boys had complained to Scouting officials in 1979 that troop leader James P. Schmidt made them sleep in his tent. "He told us that there was a wolverine outside to scare us so we would get closer to him," one boy wrote in a letter contained in Schmidt's confidential file. "All night he tried to put his hand down my pants."

The Scouts said in court papers that an official confronted Schmidt, who said he had faced other accusations of this sort "but that he was innocent of all of them." Officials said they had notified police and the troop's sponsor, the local Mormon church, whose leaders promised to keep an eye on Schmidt.

Just before Morgan started eighth grade in 1980, Schmidt was appointed his troop's assistant scoutmaster. One day, Schmidt allegedly drove Morgan to his home, took Morgan into his bedroom and repeatedly grabbed the boy's crotch. Morgan stopped the molestation, he alleged, by kneeing Schmidt in the groin.

Another plaintiff in the same case alleged that in 1982, when he was 9, Schmidt sodomized him and forced him to perform sex acts with his own cousin.

In 1983, Schmidt pleaded guilty to one count of lewd and lascivious conduct with a 10-year-old Scout. The former troop leader, now a registered sex offender in Maryland, could not be reached for comment.

After two years of courtroom wrangling, the Idaho Supreme Court ruled that the new law didn't apply to incidents of abuse that occurred before it was passed. Morgan's case evaporated.

"If I only lived somewhere else," Morgan said.