Chapter 11 announced - Part 3 - BSA's Toggle Plan

[fred8033]

6 hours ago, CynicalScouter said:

3) The COs were by no means "ceremonial" either. ... 

4) Congress isn't liable for BSA's actions for the same reason that your Secretary of State's office isn't liable for when it issues a business license/articles of incorporation to a business that then dumps toxic waste in your front yard. The Congressional Charter is an honorific. it is ceremonial. It does NOT make BSA any kind of government entity or Congress liable. It simply says BSA is licensed to do business.

PS: I'd argue this has nothing to do with governmental immunity or sovereign but a different species called legislative immunity. In short, passage of a "bad" law (unconstitutional, one you just don't like, one that is abused, whatever) can NOT be used as the basis to sue the legislature in general or individual legislators in particular.

I've seen arguments that this is a sub-species of governmental or sovereign and not wholly different. I'm...not persuaded especially when for example the executive branch asserts or imposes on the legislative branch, but that's another story.

I generally agree you are right, but as the CO charter agreement has been taken more serious recently to infer more responsibility on the CO, similar arguments could be made at the national level.  

• Almost every year there is a picture of the president in the oval office with scouts to receive a report on how scouting is doing.  
• For decades, military hosted and supported scouting jamborees and other events.  Our own state has hosted an annual huge scouting event at the local military base.
• For a long time, military has acknowledged Eagle scouts with rank and effectively extra cash. 
• For a long time, different levels of government have actively supported scouting and benefited by projects. 

It is easy to see strong national support / involvement for scouting.  It seems easy to assert that if COs should have known better, the national government should have known better and was negligent.  

Until fairly recently, most COs thought their charter was ceremonial.   ... who knows what the future will bring ...

But I agree with you ...  it's a much larger stretch to assert at the national level.

 

[fred8033]

5 hours ago, Eagle1970 said:

In my case, the Catholic Parish that sponsored our troop benefited by providing the complete package-Church, School, and social life consisting of youth organizations and Scouts.  I can see the potential liability because even without directly running the Scout troop, the troop WAS operating under the Parish brand.  And had I not been invested in the balance of the package, I may not have been a Scout.  And therefore may not have been abused.  

Well said ...  very good argument for CO liability.  

Same could be made for national government liability.  I'd strongly argue those from patriotic families would be strongly drawn to scouting.  Uniform.  Salutes.  Federal support (president, charter, etc).   Military benefits.  Previously recognized on college loans.  etc.    National government definitely benefited in military, projects, and promotion of patriotic citizenship.  

The whole scouting patriotic package is extremely appealing and benefited Uncle Sam.  It's definitely one reason BSA has a congressional charter. 

[CynicalScouter]

8 hours ago, fred8033 said:

It doesn't protect the organizations.  Cities.  School districts.  Counties.  Federal government.   Governments organizations are sued all the time for damages.  

It does protect organizations. At the federal level, there's something called the Federal Tort Claims Act that allows for damage suits against the Federal government. it effectively waives sovereign immunity to a limited extent. Prior to that no, you could not sue the federal government for damages.

At the state level, most of the entities you described also have sovereign immunity and are not subject to suit in their own courts. That's why if you want damages against a school district, you go sue (if you can) in federal court. Some states have their own version of the Federal Tort Claims Act, but not all.

This became a big deal in Georgia recently where the state's supreme court had rule not only could you NOT sue state agencies in state courts for damages, you couldn't even sue for injunctive relief, either, making it impossible for people to have state laws declared unconstitutional in state courts. The legislature and voters amended the constitution to put in a very, very limited waiver of sovereign immunity into the state constitution to address this.

Edited June 11, 2021 by CynicalScouter

[CynicalScouter]

7 hours ago, fred8033 said:

Same could be made for national government liability.

It doesn't. In order to demonstrate liability for duty to care, you have to demonstrate that the federal government took responsibility for the care of that child. Again, BSA is not a government entity. The federal government took no implicit or explicit responsibility for the care of the children within BSA.

In any event, this is veering of the bankruptcy topic.

[Eagle1970]

My point was that CO's are more liable than one might think at first glance.  Even a ceremonial role can actually be the entire root cause of the abuse.  I am likely time-barred so there may be nothing I can do about that.  But to the extent it relates to the bankruptcy, I'd love to see them included.

 

[Eagle1993]

3 minutes ago, Eagle1970 said:

My point was that CO's are more liable than one might think at first glance.  Even a ceremonial role can actually be the entire root cause of the abuse.  I am likely time-barred so there may be nothing I can do about that.  But to the extent it relates to the bankruptcy, I'd love to see them included.

Regardless of the bankruptcy outcome, no piece of paper will prevent any lawyer from suing COs in the future.  I discussed this with a lawyer back in 2020 during Covid.  I asked him if someone got Covid at our event and died, who would he sue.  He said everyone.  Sue the BSA, Local Councils, Charter Organization and individuals.  Go for maximum penalties and let the court figure out who will pay.

If any organization signs a piece of paper that ties them to BSA, they could be brought into lawsuits in the future.  Perhaps they wouldn't be found liable, but they would need to hire lawyers and deal with the fallout.  

I think COs will see the bankruptcy outcome and think twice about signing any piece of paper the BSA puts in front of them.  If I was a lawyer for a current CO, I would advise against working with the BSA going forward ... unless scouting is an important aspect of their organization.  If not, it is simply not worth the risk.

[100thEagleScout]

34 minutes ago, Eagle1993 said:

Perhaps they wouldn't be found liable, but they would need to hire lawyers and deal with the fallout.

Just being brought into court is already a loss for most organizations.  Especially if the plaintiff attorneys are backed by hedge funds which many times they are.  They can burn through money without ever taking a hit.

Edited June 11, 2021 by 100thEagleScout

[CynicalScouter]

39 minutes ago, Eagle1993 said:

If I was a lawyer for a current CO, I would advise against working with the BSA going forward ... unless scouting is an important aspect of their organization.  If not, it is simply not worth the risk.

That's one of the reasons for the facilities use agreements; COs and their lawyers were freaking out. But even that is as you say a risk some COs don't think is worth it anymore.

[qwazse]

  

17 hours ago, ThenNow said:

Forgive me and respectfully, but you have noted this small sample at least three times that I recall. I'm not you, but I wouldn't be willing to draw conclusions based upon that admittedly small sampling. I'm curious how many are in that anecdotal study group, their ages now and at the time of abuse, gender and why you think it can inform a context of abuse not by someone related to the victim. Also, I did not use the word "strong" when suggesting there should be corroborating points of reference where there are currently none.

@ThenNow, again, no forgiveness necessary. Just as you, and others have touted 85,000 as a big number ... I have, with some reasonable objectively, identified it is a small percentage, relative to estimates from reliable studies.

The review article that @CynicalScouter shared pointed out that only one of the studies estimated lifetime prevalence of victimization.

Quote

Among the 5 federal agency surveys we reviewed, only NISVS collected lifetime prevalence, limiting our ability to compare lifetime data across surveys. It found lifetime prevalence for men as follows: made to penetrate = 4.8%, rape = 1.4%, sexual coercion = 6.0%, and unwanted sexual contact = 11.7%. ...

Those tragically high percentages are pretty tight estimates of what's been happening in the average modern American male lifetime so long as he's avoided juvenile detention or jail. But NISVS data are not relevant to Child Sexual Assault. So, we can have a good study that brings nothing to bear on the question at hand.

Part of the challenge of my profession is finding good comparison groups to the kids my colleagues have studied, and they are very, very hard to come by. I have been very careful to choose, reliable studies that give credible conservative estimates of what's happening to the population in general.

I agree that it is an ecological fallacy to generalize anecdotal evidence to a large percentage of a population. But, here's my point: 85,000 represents a small percentage of 100 million alumni (... rounding the denominator down even further for brevity).  Just because it was larger than what BSA expected doesn't change that. Then, number of claims aren't verifiable represent an even smaller percentage. So, I am generalizing my experience with the paucity of detail from some of the victims who I believe and up-scaling it to what we have identified here. It seems most likely that non-verifiable claims in this small percentage of scouting alumni could very well represent a legitimate history of abuse by a scouter or fellow scout.

Saying that my assertion is anecdotal does not validate any other alternative assertion that would justify sifting through the existing claims to shore up viability of a claim. Put forward your anecdotal evidence that nearly all of the folks who you believe are victims have minimum recall to meet whatever veracity test one would propose -- and then you have a counter argument. But even if 1 in 10 of the survivors you know are terribly short on details, then that is evidence in support of flat-out accepting the non-verifiable claims as ultimately viable.

18 hours ago, Eagle1993 said:

One additional tidbit from Kosnoff.

He is claiming there are tens of thousands of others who didn't meet the 11/16/2020 claim date that have claims ready. ...

Statistically, that makes sense.  There are surprisingly few TCC claims from this century.

[johnsch322]

1 hour ago, qwazse said:

Just as you, and others have touted 85,000 as a big number ... I have, with some reasonable objectively, identified it is a small percentage, relative to estimates from reliable studies.

Yes 85,000 is a big number but in my opinion that number is way higher.  30% of men die between the ages of 50 to 80 years old.  There was 53,619 claims in the years between 1954 and 1984 (if average age of abuse was 13 these victims would be between the ages of 50 to 80 now).  If the 30% were still alive and were to claim that would be an additional 16,086 claims.  That does not take take into account those who may still be alive suffering from dementia and or mental illness who cannot because of their conditions make a claim.  

Look at it a different way...what was the number of abuse incidents versus the number of local councils or scout troops?  I bet those figures would look a bit more scary.  

In 1970 there were 493 local councils.  There are 2,839 claims for the year 1970.  That is 5.75 claims on average for the 493 local councils...shocking?  Remember that number would be higher if all victims were alive or somewhat competent.

Edited June 11, 2021 by johnsch322

[yknot]

1 hour ago, qwazse said:

  

I agree that it is an ecological fallacy to generalize anecdotal evidence to a large percentage of a population. But, here's my point: 85,000 represents a small percentage of 100 million alumni (... rounding the denominator down even further for brevity).  Just because it was larger than what BSA expected doesn't change that. Then, number of claims aren't verifiable represent an even smaller percentage. So, I am generalizing my experience with the paucity of detail from some of the victims who I believe and up-scaling it to what we have identified here. It seems most likely that non-verifiable claims in this small percentage of scouting alumni could very well represent a legitimate history of abuse by a scouter or fellow scout.

Saying that my assertion is anecdotal does not validate any other alternative assertion that would justify sifting through the existing claims to shore up viability of a claim. Put forward your anecdotal evidence that nearly all of the folks who you believe are victims have minimum recall to meet whatever veracity test one would propose -- and then you have a counter argument. But even if 1 in 10 of the survivors you know are terribly short on details, then that is evidence in support of flat-out accepting the non-verifiable claims as ultimately viable.

 

The only numbers we have that are not anecdotal are the claims that were filed. Until they are further analyzed to either accept or deny them, they represent a factual data point. Everything else is conjecture. You say you are being careful about how you select your data, but several times it has been pointed out that comparing the number of claims filed in the current day to the past universe of scouting alumni of 110 million, most of whom are likely now dead or incapacitated, is not valid. I think it is also important to acknowledge that asking survivors to file claims is not the same as conducting a study that offers anonymity. The act of filing a claim carries some degree of public exposure, a limiting factor in getting many survivors of sexual abuse to report their abuse.  Many of the studies that have been done have been confidential and not part of a filing where the victim's name would be exposed to an attorney and office staff. Anecdotally on this forum and elsewhere, victims have noted that they were abused but chose not to file a claim for various reasons. We have no idea how many victims fall into that category. 

[Eagle1993]

Kosnoff just came out with some numbers.  He is estimating that there were actually millions of youth abused in the BSA.  

• BSA admitted they had 8,000 leaders listed in their perversion files
• BSA previously admitted they destroyed many files in the 1970s and didn't keep records of what they destroyed
• In 1935, BSA stated they had 2,500 leaders listed in perversion files.  Based on extrapolations (assuming rate remained the same), Kosnoff estimates 45 - 50K leaders were removed from the list in the 1970s.
• AIS indicates 95% of their clients have identified unique abusers, not on the perversion file list.
• If same holds for non AIS, there are then 80,000 abusers in scouting that were not listed in the perversion files (8,000).
• FBI states each child molester has over 100 child victims
• 88,000 abusers in BSA * 100 victims = 8,800,000 victims (not all in scouting, but linked to scouting leaders)

I don't claim these are accurate.  However, it shows how we shouldn't get stuck on the 84,000 number.  There are estimates out there claiming millions of abused scouts.  In the end, I think we only say, 84,000 individuals filed claim and now we need to deal with it through the bankruptcy process and move on.  

[100thEagleScout]

10 minutes ago, Eagle1993 said:

However, it shows how we shouldn't get stuck on the 84,000 number.

What it does show is it debunks BSA’s claim that they are still statistically lower in child abuse cases than other organizations.  I’d like to say the opposite is true, but the issue with these cases is answers only draw up more questions.

[DuctTape]

Over the years I have seen the mention of the "perversion files" a number of times. Were these files specific as to "why" the scouter was on the list? The reason I ask is eagle1993s post references the entire list as though they were all abusers. I am not suggesting otherwise, I am asking whether the files were solely of abusers and suspected abusers or did they include names of people who  were labeled as "pervert". (as an example homoexuals have been labeled this way, perhaps adulterers as well). 

[CynicalScouter]

6 minutes ago, DuctTape said:

I am asking whether the files were solely of abusers and suspected abusers or did they include names of people who  were labeled as "pervert". (

The official name was the Ineligible Volunteer Files (IVF).

A person could be added to the IVF for a variety of reasons, https://documents.latimes.com/boy-scouts-paper-trail-of-abuse-documents/

There were six categories

1. Perversion
2. Morals
3. Financial
4. Leadership
5. Theft
6. Criminal

Clearly for purposes of the sexual abuse lawsuit(s) going back into the 1990s, some of these were more relevant than others. The "Perversion" files, while the biggest subset, were not the ONLY subset, however people mislabel ALL the IVF files as the "perversion" files.