Ruling May Offer New Route for Idaho Sex Abuse Suit against Boy Scouts, Mormon Church

By Meghann M. Cuniff
Idaho Statesman
November 6, 2012

http://www.idahostatesman.com/2012/11/06/2335781/ruling-may-offer-new-route-for.html

Ronald Evan Morgan was 13 when he says a scoutmaster molested him on a Boy Scout camping trip in Idaho. Born and raised in the Treasure Valley, Morgan, now 46, lived with the secret for nearly three decades before suing the organization in 2007 for failing to protect him from a man he said everyone knew was pedophile.

He never got his day in court. The Idaho Supreme Court ruled three years ago that because the state law allowing claims based on childhood sexual abuse wasn’t enacted until 1989, Morgan and his two unnamed co-plaintiffs were too late.

But an August ruling by a federal judge in Boise could reopen a door previously closed.

U.S. District Judge Lynn Winmill has allowed a $5 million lawsuit against the Boy Scouts of America, the Church of Jesus Christ of Latter-day Saints and the Ore-Idaho Council of the Boy Scouts in Boise to be heard by a jury on the grounds that the organizations engaged in institutional fraud by purporting to be a safe place for young boys while they knowingly concealed sexual abuse by its members.

It’s the first child sex abuse lawsuit in Idaho to pursue such a legal angle.

No trial has been scheduled. Instead, lawyers are negotiating a settlement, according to court documents.

Winmill’s decision could be groundbreaking for survivors of child sex abuse in Idaho and other states where civil suits have been rejected because of the timing of child sex abuse laws.

“I hope any and every child abuse victim in Idaho, especially those who have been told it’s too late for criminal and it’s too late for civil (action), will go back and consider this option,” said David Clohessy, executive director of the Chicago-based Survivors Network of those Abused by Priests. “I also hope and fundamentally believe that more employers in Idaho will be more responsible and less secretive regarding child sex abuse.”

DIFFERENT STATES, DIFFERENT LAWS

Winmill’s ruling comes as newly released documents show Morgan’s claims about scoutmaster James Phillip Schmidt and the Boy Scouts in the Treasure Valley were valid. Scouting officials long had suspicions about Schmidt, but they allowed him to continue working with boys anyway.

It was not until criminal charges were brought in 1983 that Schmidt, now a registered sex offender in Maryland, was officially banned from the Boy Scouts. And Schmidt wasn’t alone; the documents revealed for the first time the names of seven other men banned from scouting in Idaho — but not always prosecuted — because of sexual abuse claims by young boys in their care from 1965 to 1985.

The case that led to the public release of records on Schmidt and other Scout leaders contrasts starkly with Morgan’s unsuccessful lawsuit.

In that case, Kerry Lewis of Portland sued the Boy Scouts claiming he was sexually abused as a young Scout in the 1980s. He sued in Oregon courts, his case went to trial and a jury awarded him nearly $20 million. The Oregon Supreme Court also ordered the Scouts to hand over thousands of pages of secret pedophilia files to Lewis’ lawyers, who released them to the public Oct. 18. Of the nearly 15,000 pages, 33 pertain to Schmidt. He’s one of more than 1,000 men named in the files.

Differences in state laws led to the contrasting rulings. Oregon’s child sex abuse law is retroactive and Idaho’s is not.

Morgan’s 2007 lawsuit was the first filed after the Idaho Legislature passed a law allowing victims of child sex abuse to seek civil damages from their abuser and his or her employer within five years of discovering they’d been harmed. But Morgan said he was abused in 1979 and 1980. Because Idaho’s criminal law against child sex abuse wasn’t passed until 1989, the Idaho Supreme Court ruled that victims before then aren’t eligible to seek civil damages under the new law.

Morgan, who lives in Mesa, Ariz., could not be reached for comment. Tim Walton, a Boise lawyer who represented Morgan, declined to comment on whether he and Morgan may pursue a lawsuit based on the fraud grounds allowed in Winmill’s ruling. But he said it’s crucial victims like Morgan have a chance at justice.

“If the courts are closed to these victims, then they’ll just live with the horror of the abuse that they suffered for the rest of their lives,” Walton said. “It’s not about the money for these folks. It’s about justice.”

Thomas Banducci, a Boise lawyer who is defending against the lawsuit with Wade Woodard and Stephen Thomas, said in an email that Winmill’s ruling “was based on the very unique facts of the current case” and said he doesn’t believe it will create a precedent. He did not elaborate.

‘MORALLY UPRIGHT MEN’

The lawyer handing the federal suit before Winmill works for Kelly, Clark & Crew, the Portland child sex abuse law firm that won the unprecedented jury verdict in Oregon.

Gilion Dumas told the Idaho Statesman that she first pushed the fraud angle in other states after reviewing thousands of pages of historical records pertaining to the Scouts. Similar lawsuits have been filed in other states, including Montana, Washington and Oregon.

She declined to discuss the specifics of the Idaho case and the potential settlement.

Her client in the Idaho case, identified only as Tom Doe, accused Larren B. Arnold of sexually abusing him between 1966 and 1970 while Arnold was a Scout leader and religious adviser through the LDS Church in Nampa.

At issue was not just sexual abuse and the fact that the organization employed Arnold, but also what the organizations did — and didn’t do — to stop him. The man, now a 55-year-old resident of Portland, joined Troop 101 in 1965 and ultimately earned the rank of Eagle Scout. The LDS Church helped form the troop through the Boy Scouts, selected Arnold as scoutmaster and appointed him the religious adviser.

Arnold, now 77, owns a home in Pocatello, according to Bannock County property records. A phone number listed for him has been disconnected, and he could not be reached for comment.

“He was our scoutmaster and leader and we adored him,” the plaintiff recalled in a deposition transcribed in federal court documents.

The man described fondling, forced oral sex and other abuse during overnight trips in Idaho and Oregon. An assistant scoutmaster partook in the abuse on at least one occasion, the man said.

According to the suit, the church presented Scouting as a program that was “safe and beneficial for boys, physically, emotionally and spiritually” that prompted the boy and his parents to trust its expertise “in selecting morally upright men to lead Boy Scout troops” and to allow Scout leaders to look after the boy.

Yet leaders in both organizations knew that Scouting was rife with child molesters, the lawsuit alleges. It says that leaders discovered no later than 1965 that men were using the program to groom young boys for sexual abuse, but they changed nothing and endangered more boys in the supposedly wholesome and spiritual program.

“Defendants actively concealed the problem of child molestation by Scout leaders, and plaintiff did not and could not obtain access to this information,” according to the lawsuit. It also alleges Scouting and church activities Arnold conducted with the boy — with the blessings of the organizations — were acts calculated to groom the boy for sexual abuse.

In 1965, the man’s lawyers say, one Scout’s father told an LDS bishop in Nampa that Arnold had molested his son. But Arnold’s involvement with the Scouts continued, and the boy and his parents were never warned that a pedophile was in their midst.

“It was generally fraudulent not to tell plaintiff and his parents that there was a risk of molestation in Scouting and specifically fraudulent to place Arnold in a position of trust and responsibility knowing that he had already molested at least one boy,” the lawsuit says.

NO REASON FOR WARNINGS

Banducci, Woodard and Thomas, the Boise lawyers defending the LDS Church and the Boy Scouts, wrote in court documents that the first documentation of abuse by Arnold was in 1991, based on misconduct reported in the 1980s.

Only a fraction of Scout leaders molested boys, so they had no reason to warn boys and their parents, the lawyers argued.

Further, descriptions of Scout leaders in guidebooks as being wonderful men of high moral character were broad statements made in the course of advertising. Such “opinion and puffery” is not subject to fraud laws because it is not meant to be based on fact, the lawyers wrote in court documents.

Winmill ruled Aug. 31 that the fraud claims can move forward. He rejected the Scouts’ argument that they were not obligated to disclose abuse by members, saying such a denial “seems to be at odds with many of the basic tenants of Scouting — trust, loyalty, friendship and reverence.”

“A reasonable jury could find that the Boy Scout defendants owed Doe a duty to disclose the alleged risk of sexual abuse by adult male volunteers involved in the scouting program,” Winmill wrote. “The court does not know whether the claims will bear out at trial, but Doe has presented enough evidence to present the issue of fraud to a jury.”


Contact: mcuniff@idahostatesman.com