What the Boy Scouts Get Right

(Bloomberg Opinion) -- My recent column on the troubles besetting the Boy Scouts of America occasioned a considerable and thoughtful correspondence. A quick recap: Last week brought news that the Scouts are considering bankruptcy as they deal with lawsuits concerning alleged child abuse in the organization’s past. In my column, I argued that although the group should pay for wrongs that have happened on its watch, we shouldn’t let it die.

The concerned responses flooded in; and I am grateful for them.

Some correspondents asked me to make clear that the Boy Scouts of America is a legally separate entity from the individual troops that children join, most of which seem to be doing just fine. This is a clarification I am happy to make.

Others who got in touch hoped I might clarify that the allegations deal almost entirely with episodes several decades old. The possibility of bankruptcy arises largely because a number of states have changed their laws (or are considering doing so) to allow suits for abuse that previously would have been barred by the statute of limitations.  A bankruptcy would allow a court to craft a way to pay out claims in an orderly manner.

But in the face of blaring headlines, perhaps the most important point to add is that the Boy Scouts some 30 years ago adopted rules that were intended to avoid any recurrence of the horrific episodes from decades ago — rules so well designed that other organizations have started to implement them.

The rules follow from the well-understood proposition that sexual abuse of children is a crime of opportunity. Key to the opportunity is privacy. Abuse usually takes place when a child is alone with an adult the child trusts. Given that Scoutmasters, like others who work with kids, need the trust of those they teach, any practical solution must therefore eliminate the privacy.

Under principles adopted in 1988 and since updated, the basic rule is this: No adult should ever be alone with any child. Period. A child may meet with two adults or an adult may meet with two children, but nothing is one-on-one. If for some reason an adult leader must talk to a child out of the hearing of others, the conversation must nevertheless take place within view of others. Should an adult leader need to see a Scout outside of scouting activities, the same guidelines apply. If an adult talks to a Scout by telephone, another adult must listen in. Similar rules apply to email and other forms of digital communication.

Scouts and their parents are informed about the rules, so that they know when an adult volunteer is breaking them. During my time as a Scoutmaster, we took the principles seriously indeed. Pretty much all Scoutmasters do. Indeed, it’s worth noting that the great majority of the charges of abuse against the Scouts took place before the guidelines were fully implemented.  The organization may have allowed horrors to happen on its watch in the past, but deserves credit for doing its best over the last three decades to ensure that they won’t happen again.

My point has nothing to do with who should win any particular lawsuit. Nobody, I trust, is for letting child abusers or their protectors escape punishment. But let’s consider a simple comparison. There’s much talk about how unfair it is for the Scouts to “hide behind” the statute of limitations. Fair enough. Still, here the Scouts are hardly alone. For instance, try suing a school district where a child has been abused. Some states use sovereign immunity to restrict lawsuits against their schools. Others require plaintiffs to show recklessness rather than mere negligence in managing school personnel. And many cap the damages a jury can award against school districts.

We don’t know how many kids are sexually abused in public schools because there are few record-keeping requirements. An investigation by the Associated Press in 2017 found 17,000 reports over a four-year period, but conceded that it was only scratching the surface. A 2016 USA Today investigation discovered case after case in which school districts concealed abuse of children and even hired those who had abused elsewhere.

And yet we don’t condemn the schools wholesale, because we know that the children who attend them are overwhelmingly safe from abuse. The abusers are no more than a tiny fraction — by most estimates, well under 1 percent. Nearly all teachers are decent and caring individuals who would never dream of harming a child.

Let’s not forget, in our rush to judgment, that the same is true of the adults involved in scouting.

I was also asked whether it’s a good thing for states to decide, ad hoc, to change their statutes of limitations for particular crimes. But that’s a question more political than legal. Lawyers can discuss the effect of a statute of limitations, not what the statute of limitations ought to be.

There’s no effective way to screen potential adult leaders in advance to eliminate those who would harm children. A 2012 review of four decades of Boy Scout files found that alleged abusers fit no clear profile.

Criminal background checks for adult volunteers became mandatory in about 2008.

Yes, there are a handful of grim exceptions — but, as far as is known, only a handful.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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