Personal Injuries – Part 2

On Church Property or During Church Activities

Church Law and Tax 1990-09-01 Recent Developments

Personal Injuries – On Church Property or During Church Activities

Denominations that conduct scouting programs will be interested in a recent ruling of the Virginia Supreme Court refusing to find the Boy Scouts of America legally responsible for the homosexual assaults of a local scoutmaster. Here are the facts. At the age of 12, a boy became a member of a local scout troop in Virginia. The boy alleged that his scoutmaster initiated a homosexual relationship with him and had homosexually molested him on 60 or more occasions over a period of a year, persuading him that such behavior was normal and acceptable. The relationship caused the boy severe psychological, emotional, and physical harm, resulting in his withdrawal from school and commitment to in-patient treatment in a psychiatric hospital. The scoutmaster was later convicted of a number of felonies as a result of his homosexual offenses against the boy (and two other scouts), and was sentenced to a lengthy term in the state penitentiary. The boy and his parents sued the scoutmaster, the national offices of the Boy Scouts of America (BSA), and a regional scouting organization (the National Capital Area Council, or “NCAC”). They argued that BSA and NCAC were legally responsible for the boy’s injuries since they were “negligent in the selection and retention” of the scoutmaster. Specifically, they claimed that BSA and NCAC “should have known” that the scoutmaster had been convicted five years earlier of four counts of sexual assault upon a boy scout in Rhode Island while acting as a scoutmaster there. After a six-week trial, a jury (after seven days of deliberations) ruled in favor of BSA, but found the NCAC negligent and awarded damages of $45,000. However, the court ordered the scoutmaster’s attorney’s fees of $37,000 to be paid out of this judgment (effectively reducing the family’s award to $8,000). The family appealed the verdict exonerating BSA, and the Virginia Supreme Court upheld the trial court’s ruling in favor of BSA. The court began its opinion by noting that there are approximately 1.5 million adult volunteers who work with the Boy Scouts each year, with an annual turnover of about one-third. When a local troop selects a scoutmaster, it sends an “adult application” to the local council which forwards it on to BSA. When BSA receives an application, it checks the applicant’s name against a confidential list of persons previously reported to BSA as “unfit.” If the individual’s name does not appear on the list, and he meets other requirements, the application is approved. In addition, a local troop can discharge a scoutmaster directly without any prior approval by BSA or the local council. The court found it significant that BSA had not been informed of the scoutmaster’s conviction on several counts of sexual molestation in Rhode Island. His name did not appear on the confidential list of persons previously reported to BSA as “unfit.” The scoutmaster was hired by the local troop in Virginia after two or three interviews. Neither BSA nor NCAC took any part in his selection. BSA was not informed of the scoutmaster’s pedophilia until after his arrest and criminal prosecution. The court concluded that there was “abundant evidence” to support the jury’s conclusion that BSA did not “hire or retain” the scoutmaster, and accordingly it could not be legally responsible for his behavior.

What is the significance of this case to churches and denominations? First, it illustrates that astronomical jury verdicts are not always awarded in cases of flagrant sexual assaults upon minors. Second, it demonstrates the difficulty sexual molestation victims have in successfully suing scouting organizations having no actual notice of a local scoutmaster’s previous misconduct. The court’s decision was based primarily on the ground that an organization cannot be legally responsible for “negligent hiring or retention” of an employee if it does not in fact have the authority to hire or retain the individual. However, it also noteworthy that the court was unpersuaded by the family’s argument that BSA “should have known” of the scoutmaster’s previous criminal convictions for molesting other scouts in another state. Why did the court reject this argument? It did not say. However, there are two plausible explanations. First, how could an organization conduct criminal records checks on 1.5 million volunteers (with an annual turnover rate of one-third), particularly when many law enforcement agencies remain unwilling to disclose this information? It would be logistically impossible. Second, why should an organization be put to such time and expense without some indication that an individual poses a risk of harm? After all, the vast majority of scouting volunteers pose no risk whatever. Many courts have ruled that criminal records checks are not necessary unless a job applicant poses some unique risk of harm to others. This simply is not the case with scoutmasters. Quite to the contrary, they provide a significant social benefit to millions. Of course, other courts may reach different conclusions. But the Virginia Supreme Court’s decision is a reasonable one, that hopefully will be given due consideration by other courts. Infant C. v. Boy Scouts of America, 391 S.E.2d 322 (Va. 1990).

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