Child abuse reporting then and today

[eisely]

Bart,

 

Statutes of limitations exist for good reasons. Extending the statutes on these kinds of crimes indefinitely may well create more problems that such an action would solve. How about basing the statute on the age of the complainant? For example, if a complainant makes no complaint before his or her 25th birthday, then subsequent claims would be ignored. Just a thought.

[BartHumphries]

eisely, I don't know what the law is in your case, but there isn't really a statue of limitations in California. True, in California, you must file a civil claim of sexual abuse within 8 years after turning 18 (meaning before your 26th birthday). However, an extension may be allowed if you file within three years of the "discovery of child sexual abuse or its effects."

 

In other words, if you have repressed memories that come out later (discovery of abuse) or you think that you're fine but some later event suddenly brings everything into your mind, you can't stop thinking about it and your life starts spinning out of control (discovery of the effects of abuse) then you can file "within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse." For instance, if you were just dandy and coping fine, not ever really thinking about it, then you had kids yourself and suddenly everything came rushing back and found yourself unable to get emotionally or physically close to your children because you're so afraid that you might hurt them that you won't even allow yourself to hug them, then you could talk to someone about that and file for the previous abuse. If a person in California abuses a child, that person may never be "free" of the consequences, no matter how much time has passed.

 

If an organization has any reason to think that some of its internally handled cases may still be legally actionable, in my opinion, it would be better to seek out the person and try to settle quietly, preempting noisy messy public legal action.

 

That being said, sometimes people are falsely accused. An organization should never have a "black list" that is based on facts that have been destroyed -- how would you go back and check on it? If it's later shown that the person(s) who made the claim were actually lying, if you destroyed the notes on who said what then how would you clear the person's name? Destroying records or any other form of evidence is not a good decision to make, in my opinion.

 

Turning an investigation over to the police also helps with "jumpers", people that move around. For instance, the Boy Scouts is now really good handling abusers who switch to a different District/Council/whatever. But what about a person who jumps to a different youth group? Boy Scouts, Girl Scouts, American Heritage Girls (who have a memorandum of understanding with the Boy Scouts, but still don't share documents like this), the YMCA, there are lot of youth programs. For the last year I've basically done COPE for a living with a non-Scout camp and I've worked with a lot of different youth programs. Jerry Sandusky, for instance, started his own youth program. The only real way to get that information shared with relevant groups is to involve the authorities (and by authorities I'm not talking about National).

 

Destroying records or evidence would also make it really difficult to show that something actually was investigated well, which could (in a later legal case) cast the organization in a more culpable light. For instance, imagine the following conversation: "How much did the organization know about what was going on?" "Well, we investigated then banned the guy for life to protect kids." "If you were certain enough to ban him for life, why was nothing ever turned over to the police? What evidence did you have from your internal investigation that was certain enough to ban him for life but that you didn't feel was certain enough for the police?" "Oh, uhm, we destroyed it." "Wait, you what? Was this done to protect someone in a higher position of power? What else were you trying to hide?" That's not going to look good -- destroying anything is a really bad idea.

[shortridge]

The important point is that the duty of care was different than it is now.

 

Beavah,

 

It's my understanding that those laws and standards vary from jurisdiction to jurisdiction - that there's no national law - and thus Montana may have had a different standard in 1963 than Virginia did.

 

Lawsuits of the sort we're discussing are generally filed at the state level, as well. So it would be up to the state courts to apply that state's standard at the time the alleged offense occurred. Presumably a judge would not allow a suit to proceed that would apply a 2012 Virginia standard to a 1950s Montana decision.

 

So what's the problem?

 

I'm really puzzled by this cowering fear of lawsuits.

[Beavah]

shortridge, of course there are different standards in different communities, eh? And of course a tort claim is a matter for state court. But yeh do understand that these "standards" aren't statutes, right? They're community or professional standards. What a reasonable person (or jury member) feels is correct. That is a question of fact, and not really subject to the judge stepping in on it.

 

The issue of statutes of limitations is another one that I think people don't quite appreciate. As Scouters, to my mind we should all be absolutely opposed to increases in the statutes of limitations and to goofy work-arounds like what BartHumphries accurately describes as California law. Those statutes of limitations are there to protect the innocent, and like as not its ourselves and fellow scouters who are the innocent who might need protecting.

 

So let's say a depressed fellow in his late 30's who is having financial trouble is seein' a counselor who doesn't much care for the BSA for political reasons. Part of the fellow's depression might be related to lifestyle, or financial circumstances or whatnot. Then suddenly some "repressed memories" come out, and you and fellow adult leaders in your troop are accused.

 

It was 28 years ago. The boy in question was only in your troop for a bit over a year, and yeh don't even remember him. The accusations aren't really specific (like many against Jerry Sandusky) in terms of time or location. Two of your most frequent leaders from back then who might serve as witnesses for yeh are dead, one from a heart attack and one from cancer. Other possible witnesses are hard to find because they've moved out of the area, and their memory is vague. There are no paper records at all, because who keeps records of campouts and such from that long ago? Yeh don't have the same insurance in place that yeh had back then to help defend yeh. Since it's a civil case, the standard is "preponderance of evidence" instead of "beyond reasonable doubt" and it probably won't require a unanimous jury verdict to find against yeh.

 

How do you mount a defense?

 

Worse, back then BSA's approach to youth protection was different, eh? We didn't do background checks, two-deep and no one-on-one were less explicit, there were no reporting requirements for suspicion. But now, it looks completely negligent that yeh didn't do a background check on a youth worker or yeh held a boy back in camp for a bit to have a quiet conversation about his behavior outside of the view of others.

 

Those are da issues, eh? They can be very real issues, that can hurt very real, very innocent people.

 

Beavah

 

[shortridge]

Beavah,

 

First, the primary concern of many people in these threads has not been the protection of those falsely accused, but the institution of the BSA. Your priorities are a bit murky.

 

Second, the repressed-memory situation you blast could lead to a lawsuit even in the absence of the BSA's perversion files.

 

Third, assuming the BSA properly documented its internal investigations and retained the full files that were core to its youth protection efforts of yesteryear, the records should actually help defend the innocent.

 

Fourth, you do understand that the release of these files will in no way affect any statute of limitations, correct? So your bringing that up is a complete straw-man argument.

 

I'll say it again: If the BSA did nothing wrong, it has nothing to fear by the release of these records.

[Engineer61]

Kudu - Well exampled.

 

"What is linking Christian Scientists to the BSA?"

 

Because like the Christian Scientists and Catholics and other religious groups, BSA has (with dealing with abuse issues) put itself above (or outside) society's norms and laws.

 

Now the Christian Scientists, Catholics, LDS and other religious factions can (in the USA) hide behind the 1st Amendment. LDS used that shield to support open polygamy, until the US government ended it. The Catholic Church is well on its sprial to unwind from its protective cover.

 

BSA, on the other hand, is a corporation that has been given special dispensation. That, with the order to release the files, is unwinding as well...

[Horizon]

If the BSA has competent attorneys, repressed memory can be countered in the courtroom. Elizabeth Loftus is one of the biggest names in showing how false memories can be implanted, and she spends a fair amount of time on the witness stand.

 

So lets not worry about repressed memories (that was more of an issue in the 80s and 90s). We should be worried about accusations that were not properly managed with either follow-up, removal from status, and notification of the police. Once again, we should have already started this review ourselves, looking for any landmines we laid for ourselves through inaction or ignorance.

[Beavah]

Hiya shortridge,

 

I wasn't just respondin' to you. Someone else raised the statute of limitations thing. It's a big discussion. I'm sorry if that made my priorities "murky."

 

I honestly don't have any priorities here. It's a discussion and I'm just sharin' my perspective and information. I think I've got an informed perspective, but I fully admit I'm comin' at it from a particular background professionally, and I respect other folks' notions. I feel strongly about da ethics and necessity of statutes of limitations for the reasons I described, but for da issue of the BSA files my thoughts are more academic.

 

In that vein, though, I don't like the way this release has proceeded because I think it makes for bad public policy to allow a plaintiff to sue, subpoena private records, and then force their release. Apparently in Oregon that can be done to anybody, eh? So yeh could file a frivolous suit, subpoena private information from a person or corporation, and cause it to be released to everyone. I don't think that's a good thing in general.

 

In specific, I think it's an especially bad idea when it comes to suspicions of abuse records. In those cases, yeh really want to be able to ensure confidentiality, because encouragin' people to come forward is vitally important. Yeh also want to ensure confidentiality for the victims, and for those about whom yeh only have suspicions. That's just a matter of fairness and decency. And if yeh think that members of a profession I'm familiar with won't look at these files as a way of makin' a living, then I reckon you're pretty naive.

 

Beavah