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Bankruptcy getting closer

Wall Street Journal

Boy Scouts Bankruptcy Strategy Would Pay Victims but Protect Most Assets

Facing hundreds of sexual-abuse lawsuits, the Boy Scouts are preparing to shield local councils and the assets they hold during a potential bankruptcy.

We can thank outgoing president, Michael B. Surbaugh , for accelerating the decline of this great organization. The Board should have booted him years ago.

The pending lawsuits go back many years prior to Surbaugh’s leadership. He did very little to address these issues with any effect.

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Personally, I’d rather place the blame on the despicable individuals who put on a scout uniform and broke the law by attacking children. But if you want to blame Michael B. Surbaugh I suppose you can.

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Wish it wasn’t so…

Scouter Rob

I agree with you Mr McDonald. The scumbags that abused the scouts get the blame. These lawsuits have been hanging in the background and National was not proactive enough in addressing the problems within the last few years.
I am not sure why Surbaugh was being praised as a great BSA leader during his recent exit.
BSA is a great organization and it is worth saving.

That should be National’s theme or slogan…Save BSA!

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That’s one way of looking at it. An incorrect way, but a way.

The lawsuits “hanging in the background” weren’t a thing until several states changed their statutes of limitations for reporting sexual assault and abuse. You don’t honestly think that anyone saw that coming far enough in advance to act proactively, do you?

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Steve has as valid a point as anyone–how do you plan for state legislatures passing laws raising the statute of limitations to “infinity” – makes it hard to get insurance and might violate the ex post facto clause in the US Constitution.

However that shakes out, ScouterRob has the best response. I wish it wasn’t so.

Scouting is still the best opportunity for youth in the world.

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I have always wondered about the ex post facto clause. It seems to me to be a violation. I want to see child molesters and they that hide them punished but changing the laws after the fact seem sort of unconstitutional to me.

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Well, they’re not taking something that was legal, making it illegal, and then punishing people after the fact. They’re taking something that was already illegal, and saying that you can be punished for it, no matter how long ago it happened.

In contrast, imagine running around in 1922, arresting people for getting drunk in 1918, when it was legal to buy and consume alcohol.

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Are you a rookie and new to scouting? States have been discussing changing the limitations for years. You don’t snap your figures and change state law, you have a long process to discuss changes in statute limits. BSA absolutely saw this issue as a distinct possibility.

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I think Scouting needs to adapt and be proactive, not reactive. It has been well understood for quite a while that sexual predators seek out positions of authority so they can groom their victims. BSA can’t claim they didn’t know, they are one of the pioneers in youth protection. The lawsuit points out they have been keeping records of child abuse since 1911. The failure of BSA to report all incidents to the proper authorities is the issue. This is not one or two incidents. They have files with over 12,000 victims and 7,800 preditors which were never shared with the authorities. They (leaders of BSA at the time) instead choose to take matters into their own hands by quietly dismissing the scout leaders. They did this to protect the organization’s reputation. In the cases where this happened, they put the organizations’ needs ahead of the safety of the children. This is why BSA is in the financial position they are in today, it is not because the law changed it is because BSA failed to put the welfare of the children above the reputation of BSA. We can’t change the past we can only learn from it. What we should be discussing is how do we rebuild the trust and the program that has benefited millions while making restitution to the thousands that were abused.

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I think your analogy would be more accurate if you think of it this way. Imagine a police chief in 1918 having a list of known alcoholic police officers and was hiding incidents of police officers being drunk on duty until after the statutes of limitations for drunkenness expires? The crime the police chief is guilty of is not drunkenness, the crime is the coverup.

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Hopefully, CEO Mosby, can provide his vision and plan for the future in the coming weeks. It would be nice to have more communication from National to the general membership.

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I’m not a rookie that’s new to Scouting. I’ve been involved with it since the early '80s.

I also know that while there was some not-especially-serious talk about changing the statute of limitations around these types of cases over the years, it all crystallized in the #MeToo movement in 2017 when Harvey Weinstein’s behavoir became well known.

And, for that matter, in some cases you do snap your fingers and change state laws. Especially in cases where it makes politicians look good…

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I agree Steve. It became a reality much faster than most people considered possible.

But–however we got here: here is where we are. I have no interest in even attempting to apply “blame” until we get the whole issue under control and move forward.

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@kevinwindisch, the US Supreme Court defined what is meant by the term ex post facto in 1925, in Beazell v. Ohio (269 U.S. 167). The Court said:

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Changing the statute of limitations does not result in punishment for anyone for actions that were legal when they were committed and does not deny the one responsible for the action any defense that would have been available when the act was committed.

Changing the statute of limitations also does not make the punishment for a crime more burdensome than it would have been at the time the crime was committed. An example of when this might happen is a murderer who commits his act at a time when there is no death penalty. The state cannot later enact a death penalty and seek to impose it. Similarly, if a state had a law at the time the act was committed that limited any prison sentence to 25 years, the state could not seek to imprison the convict for life.

The Supreme Court looked at the ex post facto clause in the Constitution in Calif. Dep’t of Corrections v. Morales (514 U.S. 499). While Pablo Jose Ramon Morales was already in prison, California enacted a law that allowed the state Board of Prison Terms to impose a three-year delay on the existing schedule for parole hearings in cases of those convicted of multiple counts of homicide. Morales asked for a parole hearing and was turned town, because he had multiple murder convictions. Feeling that his constitutional rights were being infringed and that the less punitive parole rules that existed when he committed the murders should apply, Morales filed suit. His case reached the U.S. Supreme Court which ruled that the law would be ex post facto, if his actual sentence were being increased; altering the process of obtaining parole is not an ex post facto law.

For those interested in more about Mr. Morales, he killed his girlfriend in 1971, and then his wife in 1980, while out on parole. His wife had visited him during his first incarceration. Morales represented himself in this ex post facto case, and he actually won in the 9th Circuit Court of Appeals. It was the Calif. Dep’t of Corrections that petitioned the U.S. Supreme Court to hear the case. The circuit court opinion has a lot of details and can be found at

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@PeterHopkins It seems to me that the punishment is in fact harsher now than it was at the time the statute of limitations had originally run out. It’s a little tough for me to see how criminal punishments in the examples you have translate into civil punishments.

I suspect (although I’m not a lawyer) that an example of a change in the maximum limit (assuming such exists or existed in statute or case law) on punitive and/or compensatory damages would be analogous to a change increasing the severity of punishment. I’m guessing (again, outside my field) that if there was a cap of $250,000 in punitive damages at the time of the alleged violation, but the cap was later removed, there might be an argument of increased penalty. There might be a variety of remedies for that without invalidating the statute (e.g. maintaining the current-as-of-the-offense cap for the damages). I don’t know that this would be the case (i.e. that there have been changes to caps on damages), nor that my interpretation has any relationship to actual legal thought.

For all of the hassle folks give attorneys and the courts, figuring out what the appropriate means of addressing a past wrong, especially with the potential for changes to penalties, loss of witnesses and potential evidence due to elapsed time, etc, is a giant morass. That doesn’t mean nothing should be done, just that it’s likely to be a lot messier and slower than most folks want it to be.

@jacobfetzer, I agree that the punishment now is harsher than it would have been when the statute of limitations ran out, since there would have been no punishment at all. However, that is not the standard. We must compare the punishment now with what would have applied at the time the act was committed.

The purpose of the clause in the Constitution is to protect people against the state making a law to criminalize an act that was done before the law was passed. Since any plaintiff making a claim against the BSA is not a state but a private individual, it’s likely that the ex post facto clause has nothing to do with this at all. I’m not a lawyer by trade, but I do work that sometimes gets me involved in the Constitution. So, I don’t know for sure.

Either way: If the clause applies to civil suits brought by private individuals, the standard of violating ex post facto is not met; if the clause doesn’t apply to civil suits brought by private individuals, there’s no argument at all.

I don’t mean to comment on whether I think an unlimited statute of limitations is good for society. I’m biased toward the BSA not being bankrupted, but I am also sympathetic to the victims who were harmed in many walks of life. I’m merely responding the to constitutional question that was raised.

@CharleyHamilton, yes, that’s true if the ex post facto clause applies to law changes that allow private individuals to bring suits. That’s a question to which I don’t know the answer. Please see my previous comment.

I actually should have said that the punishment now is harsher than IMMEDIATELY PRIOR TO the statute of limitations running out. The value of such a claim is certainly higher now (even adjusting for inflation) than it was, say 20 years ago. And even that was probably higher than ten years before that. The term used for this is social inflation when the courts become increasingly more aggressive in their awards to the plaintiffs. Since it’s not a legally prescribed punishment, I suspect that there is likely no constitutional violation.

Like you, I’m not commenting on right or wrong in it. I’m just curious about the whole thing. I had never considered this entire line of thinking previously.

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