PORTLAND, Ore. (CN) - "Punishment is good, because it will make the BSA repent, which they have never done," the attorney for a sexually abused Boy Scout told the jury in the punitive damages phase of the trial in which the Boy Scouts of America have been found negligent.
"We teach our children to apologize when they break a friend's toy. Criminals show contrition and ask for forgiveness before the law, but this defendant refuses to apologize, and the lack of contrition shown in the press release posted by the Boy Scouts within an hour of your verdict in the first part of this trial shows clear and convincing evidence that the Boy Scouts of America are unbowed by your original verdict and that your message must be loud enough to make them change, to make them pay attention."
Attorney Paul Mones said a $25 million award would make the Boy Scouts admit their mistakes, deter bad behavior and lead other youth organizations to increase their efforts to protect children from sexual abuse.
Mones said the jury should consider what the Scouts had and had not done to correct the misconduct exemplified by plaintiff Kerry Lewis's molestation by his Scoutmaster Timor Dikes in the mid-1980s.
Mones said that despite decades of promises to do so, the Boy Scouts still have not made sexual abuse prevention training a mandatory condition for adults to volunteer for the Scouts, or for the local councils that sponsor Scout troops.
Mones told the jury that for more than 70 years thousands of incidents of alleged sexual abuse by Scoutmasters were entered into the organization's Ineligible Volunteer files, yet every Boy Scout official who testified acknowledged that they never looked at the files or thought they could be useful.
In closing, Mones mentioned the wealth of the Boy Scouts.
"With money, we are asking you to make the Boy Scouts of America better, not by shutting them down, because there are good people there, but we are asking you to make your verdict loud enough to force them to change."
Defense counsel Charles Smith opened his closing argument by saying he would proceed like the late radio announcer Paul Harvey and "tell the other side of the story."
Smith tried to deconstruct the statement the Boy Scouts of America posted on their Web site after the jury delivered its verdict. The Scouts later removed the posting.
"The press release has been shown to you, read to you and interpreted to mean that my client hasn't learned anything from your verdict in phase one, well, let's look at what it said. 'We are saddened by what happened to the victim;' 'The man who did it does not represent the ideals of the BSA;' and 'The events happened three decades ago and we have changed.' All of these things are true." Smith said.
Smith asked, "Do you believe anyone in the BSA condones child abuse? The staff, volunteers, etcetera would condone it, or would ever knowingly allow it?
"So why did the BSA not apologize? Because the case in phase one focused on the standard of care 25 years ago. We have not apologized because an apology wouldn't solve the problem. We had the right to defend ourselves on the standard of care then," Smith said.
"We never denied abuse occurred. We never blamed this young man or his family or his mother. Abuse can happen. It can happen in Scouting. We showed you this internal memo from 1986 recognizing child abuse can happen anywhere. It can happen in Scouting and it cannot be ignored."
Smith summarized the changes the Boy Scouts made in the decades since Kerry Lewis was abused.
"Since then we have produced materials that any parent reading would know there is a serious risk of childhood sexual abuse, not just in Scouts but also in society in general." He added that Youth Protection training will become a condition of becoming a chartering organization in 2011.
Smith tired to clear up what he considered confusion over the IV files.
"The purpose of the files was to keep bad people out of the Scouts. The system was designed not to allow people to move around in secrecy. If the Catholic Church had used such a system, they wouldn't have had some of the problems they have today."
Smith said the files were kept confidential to protect the identity of victims. He added that all of the experts who were provided access to the files found that they contained insufficient data for empirical analysis of child sexual abuse. And he said the Youth Protection guidelines had been thoughtfully developed over the years.
"If the Youth Protection program is so bad, why did the plaintiffs call no experts to challenge it? Had there been anyone available they would have brought one in, but they have not."
In rebuttal, Mones said there had been no need to call expert witnesses because additions were being made to the IV files at the rate of about three incidents a week. He said that since the Scouts had never released the files, even with identities redacted, he suspected the real reason was the negative impact the sheer number of incidents would have on the organization.
Multnomah County Judge Wittmayer delivered brief instructions to the jury. He said they had only one decision to make: the dollar amount, if any, that the nine members of the jury who voted that the Boy Scouts should suffer punitive damages could agree to. The jury spent about an hour in deliberations before being sent home for the night.
Under Oregon law, the state will take 60 percent of any punitive damages award and place it in a fund managed by the Oregon Department of Justice for the assistance of crime victims.
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