YPT Changes in TCC Proposal

[SiouxRanger]

8 hours ago, HelpfulTracks said:

Nope, don't think ties.  hat list exist in one easy place. Which many of us have complained about in the past, myself included. But if I did think it exist, I would probably tell you to "just Google it."

That said, the same is true for the vast majority of NFP's out there. So, I am not what that proves. 

You need not respond to such challenges.

 

Einstein took at least a week to come up with E=mc (squared)  (Well, maybe years.)

[SiouxRanger]

10 hours ago, PeterHopkins said:

Is it possible for the BSA (or any youth-serving organization) to have youth protection rules so robust that they could successfully defend an action in a state court?

This is an EXCELLENT question.

 

The blackletter rule (that is the default, simple statement of them applicable rule to the majority of situations), is that "negligence" is the failure to behave with the degree of care that someone of ordinary prudence would have exercised under the same circumstances.

Another way of saying it (tort law, that is, civil wrong law-not criminal law-, is replete with parallel, vague statements of rules about negligence that are totally worthless, in my opinion) is that someone has failed to take "reasonable care" in the conduct of their business or actions.

My definition of "reasonable" is:  "Hire your lawyer early."

One person's definition of reasonable is another's definition of insanity.

Many times in legal analysis, it is helpful to consider an issue for what it is NOT.

And thereby get a better appreciation of what it IS.

"Negligence" is NOT "Zero Defect."  That is, doing a perfect job.  So, in the abuse perpetrator situation applicable to National, that SOME abusers managed to go undetected, or unreported, or reported but managed to resurface in an unrelated unit, or managed to evade National's efforts to identify them and deny them further access to the program and youth, is NOT negligence.

(To put "negligence" in perspective, "willful and wanton"( a greater degree of civil liability) is where someone or legal entity, such as a Catholic Diocese, transfers a known abuser to another Parish, without notice to the new Parish of the abuse issues relating to the transferred individual and subjects the new parish to the predilections of a KNOWN abuser.)  National does not seem to me to be accused of that.  National seems to have tried, though poorly so, to rid its system of abusers.

At least in theory. (Jump past the (...) in the paragraph above.)

BUT, at the end of the day, whether National, a Local Council (LC ), or Chartered Organization (CO),  is liable for negligence depends on the "findings of fact" of either Judge (if a bench trial), or the Jury.

So, this is where the "reasonable" definition comes in.

"Reasonable" is defined by the "finder of fact."

It can be the Judge, and defendants fearing a jury of 12, might "throw themselves on the mercy of the court."

It can also be a jury of twelve-all of whom must agree on the verdict.  And, that means one is risking all on the agreement of twelve folks.

 

(And there are juries of 6 in Federal court, but that nuance adds nothing to the logic of this discussion.)

[RememberSchiff]

18 hours ago, CynicalScouter said:

• Who is the BSA board?
• Who is in charge of YP for BSA? Either paid professional, volunteer committee members, or both. I'll take any.
• How many occurrences/how prevalent is child sexual abuse in scouting today?

Hiding. Hiding. Hiding.

I dug some more and all trails lead to and stop at the National Health and Safety Committee which encompasses Youth Protection under their Scouting Safely program (sometimes referred to as BSA's Commitment to Safety or Risk Management). The National Health and Safety Committee reports to the National Executive Council. I found only a couple past members. I was unable to find the current Chairperson, any other confirmed current members, or even the number members who I assume are a mix of professionals and volunteers.

Each Local Council supposedly has their own Health and Safety Committee however YP is not listed as a principle responsibility (see link below). That responsibility, as we know, is the council SE.

https://filestore.scouting.org/filestore/mission/doc/Healthandsafetycommitteechair.doc

Note the above document has no date, file number, or authors listed.  I could find the Health and Safety Committee Chairs of some local councils.

IMHO, TCC's proposed Child Protection Committee will suffer the same lack of transparency and perhaps inaction if the BSA is in control to "consider" Child Protection Committee recommendations. An independent Child Protection Committee should be in control to which the BSA reports and complies.

My $0.02,

Edited October 5, 2021 by RememberSchiff

[CynicalScouter]

5 minutes ago, RememberSchiff said:

I dug some more and all trails lead to and stops at the National Health and Safety Committee which encompasses Youth Protection under their Scouting Safely program (sometimes referred to as BSA's Commitment to Safety or Risk Management). The National Health and Safety Committee reports to the National Executive Council. I found only a couple past members. I was unable to find the current Chairperson, any other confirmed current members, or even the number members who I assume are a mix of professionals and volunteers.

How utterly insane to my way of thinking that this information is not front and center. I get it if there is no youth protection committee and instead it is part of a bigger health/safety. I would say it needs to be separate considering BSA's track record here, but ok.

But the fact that we cannot even identify members? Staff? How insane.

[CynicalScouter]

11 minutes ago, RememberSchiff said:

IMHO, TCC's proposed Child Protection Committee will suffer the same lack of transparency and perhaps action if the BSA is in control to "consider" Child Protection Committee recommendations.

I have absolutely no doubt in my mind that if the victims of child sexual abuse (who have to be a part of this committee) find themselves getting ignored that a) they will raise a stink and b) will come back to the court for a supplemental order directing BSA to comply with the terms of the reorg plan.

I have faith the TCC won't let that happen.

Edited October 5, 2021 by CynicalScouter

[elitts]

15 hours ago, johnsch322 said:

Let’s be honest. BSA was afraid it wouldn’t survive if it had to go to court on all of the lawsuits it faced. So they then entered bankruptcy and even on their own volition asked claimants to come forward.

Just to be clear: Asking any claimants to come forward wasn't "on their own volition".  Part of filing bankruptcy involves the requirement to inform any potential creditors that the bankruptcy is happening so that they can file notice of the debt with the court.  Failure to do so when you know a creditor exists is one of the ways you can get a bankruptcy undone if someone comes forward later.

18 hours ago, PeterHopkins said:

I have a question for the lawyers in the room.

Is it possible for the BSA (or any youth-serving organization) to have youth protection rules so robust that they could successfully defend an action in a state court? To be clear, I am not saying that is an appropriate response to a victim. What I'd like to know is whether a youth-serving organization as a respondent in civil litigation could be held not liable, because the plaintiff is unable to show the organization was negligent, because the organization did everything it could have done to prevent the abuse.

Cynicalscouter explained how it would be theoretically possible to successfully defend against an abuse complaint, but in reality, with the way our courts work any incidence of abuse is going to essentially be considered "proof" of negligence.  The American public has completely bought into the idea that if something bad happens you are entitled to be reimbursed and that means that SOMEONE with a big checkbook has to be held to blame. 

 

58 minutes ago, RememberSchiff said:

IMHO, TCC's proposed Child Protection Committee will suffer the same lack of transparency and perhaps inaction if the BSA is in control to "consider" Child Protection Committee recommendations. An independent Child Protection Committee should be in control to which the BSA reports and complies.

 

My $0.02,

It's a nice idea, but it's not possible to operate a business (for profit or not) with a model like that.  If an independent authority has the power to simply establish rules for an organization, it gives them the power to shut the organization down.  All it would take is something innocuous sounding like "Youth must be accompanied by either a parent or 2 unrelated registered adults at all times".

Edited October 5, 2021 by elitts

[johnsch322]

4 minutes ago, elitts said:

Just to be clear: Asking any claimants to come forward wasn't "on their own volition". 

BSA entered Bankruptcy voluntarily and new of this requirement and even knew that more claimants would come forward.  They were not forced into bankruptcy hence on their own volition.

[CynicalScouter]

9 minutes ago, elitts said:

If an independent authority has the power to simply establish rules for an organization, it gives them the power to shut the organization down.  All it would take is something innocuous sounding like "Youth must be accompanied by either a parent or 2 unrelated registered adults at all times".

Yep. So? Courts appoint business receivers and monitors all the time to ensure compliance with the court's orders and grants them broad latitude.

When an entity has demonstrated a history of such utter criminality or civil liability that it cannot be trusted, an independent monitor is exactly what is called for.

Edited October 5, 2021 by CynicalScouter

[elitts]

43 minutes ago, CynicalScouter said:

Yep. So? Courts appoint business receivers and monitors all the time to ensure compliance with the court's orders and grants them broad latitude.

When an entity has demonstrated a history of such utter criminality or civil liability that it cannot be trusted, an independent monitor is exactly what is called for.

I have no problem with an independent monitor or court supervised reporting, that's not what was being discussed.  RememberSchiff was talking about an outside committee being in direct control of BSA Youth Protection policies. 

I wouldn't even have a problem with a court appointed receivership because at least that person would be neutral and independent and would have a fiduciary duty to the the organization (as well as a duty to comply with any court judgement); whereas a committee put together of survivors and experts and allowed direct control of BSA operations would not necessarily have the knowledge, skill or inclination to actually maintain the organization.

[CynicalScouter]

2 minutes ago, elitts said:

I have no problem with an independent monitor or court supervised reporting, that's not what was being discussed.  RememberSchiff was talking about an outside committee being in direct control of BSA Youth Protection policies. 

Yep. I have no problem with that. BSA has amply demonstrated it cannot be trusted. Therefore, it needs to be reformed and clearly that is not going to happen from the inside.

But the TCC's not even mandating "direct control of BSA Youth Protection policies." The BEST this committee will be able to do is recommend and suggest.

The Child Protection Committee (I am shortening to CPC) only has 5 powers.

1. BSA must report within 6 months of the bankruptcy ending and every year for 3 years a report to the CPC "regarding the Youth Protection Program and any changes thereto". That's not much of a power, but ok
2. The BSA will appoint an outside independent evaluator ("Evaluating Entity" or I am calling EE). The EE is ultimately chosen by the BSA, but the CPC is supposed to be involved in that process. The EE has two powers: conduct a review of BSA YP practies and issue a report AND oversee the development of an annual reporting program.
3. Working on the release of names from the IV files that name accused but not the victims. I'll note the USA Gymnastics has this and posts all the names of the suspended or restricted persons https://usagym.org/pages/aboutus/pages/restricted_persons.html
4. The CPC can proposed and consider and suggest plans for BSA to help survivors
5. The CPC will recommend and BSA will "consider" release of statistical reports on abuse

I wish the CPC and EE had the power to shut BSA down when it fails to improve YP or simply mandate rules, but they don't. Other than the reporting of past abuse (2 and 3) the CPC is only able to make recommendations.

 

 

 

[skeptic]

"The American public has completely bought into the idea that if something bad happens you are entitled to be reimbursed and that means that SOMEONE with a big checkbook has to be held to blame. "

And this is far TOO true and part and parcel of the mess we have here and in many other cases.  The key item here is "someone with a big checkbook; or at least the perception of one".  The view is without any peripheral vision.  Perfection and absolutism is simply impossible.  But that does not deter, and that is why it goes off on tangents and loses focus to the point of insanity.

[qwazse]

15 minutes ago, CynicalScouter said:

... I wish the CPC and EE had the power to shut BSA down when it fails to improve YP or simply mandate rules, but they don't. Other than the reporting of past abuse (2 and 3) the CPC is only able to make recommendations.

But, the CPC will be permitted to publish its own evaluation of changes (or lack of change), no? That alone could serve as an advisory to concerned parents.

My biggest problem from a boots-on-the-ground perspective is that my parents aren't concerned. They think I and my SM's are saints. I am happy to say that we are worthy of a little elevation, just like the old Handbooks said. But parents should be raising the bar on us. A report from the CPC would go a long way to helping them understand that.

[CynicalScouter]

12 minutes ago, qwazse said:

But, the CPC will be permitted to publish its own evaluation of changes (or lack of change), no?

I see nothing where they have the authority to "publish its own evaluation of changes ." Of course, I do not see anything that prohibits it, either. Moreover, and I suspect will happen, the TCC and other victims named to the CPC will go to the press and others if BSA stonewalls and drags its feet on making changes.

Moreover, this isn't forever: it is 3 years post-bankruptcy.

[Eagle94-A1]

Stupid question but here it goes. 

Who would be responsible legally for future abuse if BSA does adopt the outside group's YP policies?

[CynicalScouter]

6 minutes ago, Eagle94-A1 said:

Stupid question but here it goes. 

Who would be responsible legally for future abuse if BSA does adopt the outside group's YP policies?

I would 100% guarantee the next time a child was abused the outside group's report would be introduced as an exhibit but whose?

If BSA did NOT adopt, plaintiff lawyer runs with it:

"BSA knew they had problems. They were told by outside expert/outside group the specific problems they had and how to fix them. BSA ignored them. My client was abused as the result of BSA's refusal to change its ways."

If BSA DID adopt, BSA lawyer runs with it:

"BSA knew we had problems. We were told by outside expert/outside group the specific problems we had and how to fix them. BSA did exactly as it was told to fix it. Plaintiff was NOT abused as the result of BSA's refusal to change its ways/negligence."

Would a jury nevertheless hold BSA liable? Who knows. It will depend on the precise facts in the case.

Edited October 5, 2021 by CynicalScouter