4/22/2010 10:03:00 AM,
PORTLAND, Ore. (CN) - Grade-school visitors touring the Multnomah County Circuit Court were quickly shooed out of Judge John Wittmayer's courtroom after chaperones realized their charges were listening to testimony in the $25 million punitive damages phase of a sex abuse trial against the Boy Scouts of America. Witnesses on Wednesday defended the Scouts' efforts to train adult leaders to recognize and prevent child sex abuse, and why they did not use their extensive collection of records of abuse to warn parents.
Most of the defense testimony on Wednesday boiled down to three points: that the Boy Scouts have no nationally mandated training program to train adult volunteers to recognize and prevent sexual abuse; that the Scouts have never explicitly warned parents that their sons might face sexual abuse from Scout leaders; and that no national Scout leader ever wanted to look at the thousands of records of alleged abuse in the organization's "ineligible volunteer" files, nor did they think it would be useful or possible to have the files analyzed to help fight sexual abuse of children in Scouting.
Defense attorney Charles Smith asked the BSA's Chief Financial Officer, James Terry Jr., chairman of the Scouts' ad hoc Youth Protection Taskforce, to guide jurors through efforts the Scouts had taken to recognize and respond to child sexual abuse.
Terry said that in 1985, Scouting Magazine, a BSA publication for adult Scouters, began to publish letters from the chief Scout executive, recognizing child sexual abuse as a problem in society and calling on Scouts to do something about the problem inside and outside scouting.
Around the same time, articles were published in Boy's Life, a BSA publication for children, talking about the "wrong kind of touching." By the late 1980s the Scouts had formed an expert advisory panel to help them develop their message and produce videos, such as "It Happened to Me" and "A Time to Tell," depicting scenarios of abuse.
Terry said the Youth Protection Program was established to keep abuse from occurring in the Scouts. He said Scouts also implemented guidelines such as the "Two Deep Rule," which suggested that at least two adult volunteers be present for every Scouting activity, and the No One-on-One Contact guideline.
Other recommendations encouraged privacy for Scouts and Scout leaders in sleeping, showering and bathroom arrangements, Terry said. He added that Scouts had eliminated the use of ritual dress such as "Native American loincloths" in Scout ceremonies.
Under cross-examination, Terry acknowledged that none of the articles, videos or training programs presented Scoutmasters as possible abusers. Nor did the Scouts believe they had authority over local councils to require their volunteers to take Youth Protection training, Terry said.
Plaintiff's attorney Paul Mones asked if it was the specific intent of the Scouts to exclude scenarios involving Scoutmasters.
"I don't know," Terry replied.
"Well, was it an accident?" Mones asked.
"No," Terry said.
"Aren't they excluded because including it would make the Boy Scouts of America look bad? If the IV-perversion files contain thousands of examples, do any of the videos or publications contain examples of anal rape and oral sodomy of Scouts by Scoutmasters?"
Terry said they did not. He repeated the claim made by Scouting officials who have testified in the case, that he did not know what was in the ineligible volunteer files.
Mones listed the scenarios in Scout materials such as "stranger danger," abuse by a female babysitter, peer molestation, abuse by a sports coach, and incest.
"Who puts in the examples of the rarest forms of sexual abuse, of young boys by adolescent females, but no examples of Scout leaders? Isn't it the case that a Scout leader is a position of trust?" Mones asked.
"Yes, it is," Terry answered.
Mones pressed Terry on why the Scouts excluded leaders as trusted persons who might pose a danger to Scouts. He asked if the Youth Protection Taskforce was given access to the ineligible volunteer files when it developed its training materials.
Terry said they were not allowed access to the files, but that Dr. David Finkelhor, a member of the expert advisory board, had reviewed the files and found that they did not contain the kind of information to conduct a study of abuse in the Scouts.
"What is the reason they were never allowed to see them?" Mones asked.
"I don't know," Terry said.
"So it was the goal of the task force to protect Scouts from abuse outside of the Scouts?"
"No, it was about protection from abuse across society," Terry responded.
"But was it not clear that there was a problem in Scouts?"
"I don't know if it was clear."
Mones asked, "But you do know that perversion files contain examples of abuse?"
"I have been told that they do," Terry said.
Mones asked how many adult volunteers had received Youth Protection training. Terry said he didn't know, because the Boy Scouts relied on local councils to conduct and report on the training. He added that he didn't know how many adult volunteers were involved in the Scouts.
Mones asked why the Scouts never specifically warned parents of the potential for abuse by Scoutmasters.
"Might telling them discourage members?"
"Possibly," Terry said.
"Cause them to lose community and financial support?"
"I suppose it could happen. I don't know how you would measure that," Terry said.
"Wasn't the BSA worried that if it released the data it had, it would deter parents from enrolling their children?" Mones asked.
Defense counsel Smith objected, saying Terry had repeatedly said he didn't know what was in the files, so how could he know what the impact of releasing the information in them would have?
The judge agreed: "He doesn't know what is in the files. Move past it, Mr. Mones."
The next defense witness was Dr. Donald Bross, the director of education, legal counsel and co-director of the State Regional Team on Crimes Against Children and professor of Pediatrics at the University of Colorado Kempe Center. The center is one of the nation's leading institutions for the treatment and study of child abuse. Bross is also a longtime Scoutmaster and Scout volunteer.
Smith asked what Bross thought of the Boy Scouts' efforts to confront the issue of child sexual abuse in society.
"I was relieved and heartened that the Boy Scouts were taking steps to notify the organizations of the dangers present," Bross said. "In the 1980s more people were talking about the problem, but there was also significant backlash against child victims, an emphasis on how children can easily be led on or lie."
Smith asked about the Youth Protection program in the 1990s.
Bross said Scouts were better at addressing the problem than any other organization he knew of, except perhaps the Big Brothers/Big Sisters program. He said the literature became more realistic, more frank and that this brought complaints from several religious organizations.
The troop to which the plaintiff, Kerry Lewis, belonged when he was abused was sponsored by the Church of Jesus Christ of Latter-day Saints, which sponsors almost half of all Boy Scout troops.
On cross-examination, an obviously frustrated Kelly Clark suggested that it was not clear in what capacity Bross was testifying, as an expert on childhood sexual abuse or as a Scoutmaster.
"Have you done a study of the BSA's Youth Protection program?" Clark asked.
"No, sir," Bross replied, "only my personal experience."
"So your opinion offered today has nothing to with if the BSA needs to be punished for what happened to Kerry Lewis in 1983 and 1984? Based on what you were told about this case are you saying that they should not be punished?" Clark asked.
"Yes," Bross answered.
"But the materials presented in the program do not emphasize abuse of Scouts in Scouting by Scout leaders," Clark said.
Bross avoided Clark's implied question, saying, "Personally, I think they have addressed the danger, but they just haven't put the abusers in uniforms. I agree that it is a failure to not show uniformed leaders."
Asked why he thought the Scouts waited until the late 1980s to put in effect the Youth Protection guidelines when they knew that abuse had been occurring before 1983, Bross said he could think of no reason they could not have introduced the guidelines.
"So what changed in those six years between when the Two Deep Rule was first proposed and when it was made mandatory?" Clark asked.
"The growing realization of the problem and the willingness to let some boys not experience Scouting in order to protect them from abuse because even one abused child is too many," Bross said. He said he believed that the ineligible volunteer files were used to get rid of untrustworthy people once they had been identified.
"But you agree they never looked at the files to determine the extent of these problems?" Clark asked. "Between 1965 and the 1980s, BSA knew there had been several thousand instances of abuse. Can you imagine any reason they would not have looked at those files?
Bross responded, "I don't know why you would keep the files unless it was to improve your program."
In that case, Clark asked, didn't Bross think it was a bad idea not to have given researchers access to the files?
Bross replied that he had conducted such research without looking at specific data sets. If the records had no clear methodology or consistency then they might not reveal anything useful, he said, and then added, "But if they gave me the chance I would certainly have made the effort."
"Have you seen that the BSA has acknowledged that they have had a historic abuse problem with children in the Scouts?" Clark asked.
"No, I have never seen the Scouts admit that," said Bross, adding, "I don't know if it is a greater problem in the Scouts than in society in general."
On redirect, Charles Smith asked Bross if he saw anything unusual in keeping the files confidential. Bross replied that he did not, considering the potential for defamation of suspected abusers and invasion of privacy of the abused.
Smith announced that the defense rested.
While the courtroom prepared for rebuttal witnesses, Bross approached the plaintiff, put his arm around him and said a few words before departing. Neither the judge nor attorneys noticed this breach of protocol, but it was clearly visible from the gallery and the jury box.
After the plaintiff told his attorneys about the gesture and members of gallery said they also saw it, Judge Wittmayer informed the jury that it was improper of Dr. Bross to have done so and that they should draw no inferences or make any assumptions about his intent.
The breach of decorum set the tone for much of the rest of the afternoon, with attorneys from both sides raising their voices at each other during a short recess after the incident.
Once plaintiff's attorneys began presenting rebuttal witnesses, the limitations of 21st century communications in a late 19th century courtroom became apparent. James Anderson, a former Eagle Scout and Scoutmaster (and also a client of Kelly Clark in another suit pending against the Boy Scouts and the LDS Church) testified via closed-circuit television from Atlanta that in all of his years as a Scoutmaster with troops sponsored by the LDS Church he was never required to undergo Youth Protection training, nor was any such training offered to him.
Anderson's brother, Steven, supported his brother's claim, prompting an objection from the defense. The brothers were in the same remote location, even though the court had ordered witnesses to be excluded from hearing the testimony of other witnesses.
The judge sustained Smith's objection and told Steven Anderson they would not be taking his testimony. "That's too bad," Anderson said.
This caused the normally good-natured Judge Wittmayer to angrily remind Anderson that he was in the contempt jurisdiction of the court and that he could be dragged all the way out to Portland if he said another word. Anderson's connection was promptly terminated.
The jury was next treated to some play acting, as a member of Clark's firm took the stand to read the part of Lawrence Potts, in a deposition taken for a different case in 2004. Clark played the lawyer who asked Potts the deposition questions. Potts was the former administrative group director of the Boy Scouts of America in charge of its property, treasury, and registration and statistical services.
Potts reiterated previous testimony from Scout officials James Terry and Nicholas Marshal that the purpose of the Youth Protection training program was to fight sexual abuse of children in society in general, not in the Scouts itself. He said that under the direction of then-Chief Scout Executive Ben Love, the Scouts wanted to focus on problems Love saw emerging in society, including sexual abuse. Potts' deposition confirmed the testimony of several previous witnesses, that the Boy Scouts never performed a statistical analysis on the ineligible volunteer files, nor had the Scouts ever systematically evaluated if the Youth Protection program was effective.
All of the Scout officials who have testified in the first and second phase of the trial, and their attorney, Smith, have maintained that the Boy Scouts could not make any of their guidelines mandatory to the charter organizations that sponsor local troops because they do not own the local councils.
Potts' deposition supported this claim, and added that the national organization is simply a producer of educational materials that it can only encourage the local troops to adopt.
But this contradicted Terry's testimony that Youth Protection training would become a condition of re-chartering for local Scout organizations in 2011.
The jury then heard testimony over a speaker phone from Mark Honeywell, a partner in the Seattle firm of Gordon Palace Honeywell, who had ordered two paralegals to compile a database of 3,200 records from a subset of ineligible volunteer files Honeywell had acquired as part of discovery materials in a now-settled case with the Boy Scouts of America. The files were cross-tabulated by a variety of search fields, including age, religious affiliation, marital status, number of victims and other demographic factors. Honeywell said he gave the database to the Scouts out of a sense of altruism. Clark asked if the Scouts ever responded to his gesture; Honeywell said they had not.
Back on court TV, the jury watched the final rebuttal witness, Renee Roy, live from San Antonio, as Paul Mones asked her about her son's experience in the Scouts: how he was groomed by a local Scout leader with special trips, gifts and eventually was molested, along with another boy in the troop.
She said her son's Scouting handbook had a section on general safety topics such as "stranger danger," but it never suggested that her son could be abused by a Scoutmaster. She said that she never had any knowledge that there had been problems with sexual abuse in the Boy Scouts until the day the police called her to tell her that her son had been molested.
At the end of a long, emotionally charged day, jurors were sent home until this afternoon (Thursday), when they are to gather to hear the judge's instructions and begin deliberations.