An Open Letter to Youth Organizations, Churches, and Schools.
By Kelly Clark
April 2010

After six weeks of trial against the Boy Scouts of America—resulting in, as far as I know, the largest child abuse verdict in American history on behalf of one plaintiff—I am being asked repeatedly to blog about the lessons from the trial.  There are of course many, and some of the most important have to do with Kerry Lewis, my client and now friend, who stood so courageously and told his story so clearly.  But the lessons from the other end of the evidence—about what happens when good youth organizations forget their first principles and react to allegations of child abuse by keeping secrets—is what I want to write about first. So here is an open letter to youth organizations; here is what I hope they learn:

Dear Youth Organization:

I write this to you because you have taken on the great task of working with children.  Whether you are a school, a church, an athletic league, a dance company or a day care center, whether you are a public or private entity, whether you are a new organization or have been around for decades, you are doing good work. You are helping our young people to grow up, and you are doing your best. No doubt.  So I respectfully offer some of the lessons of the long trial in Portland, Oregon against the Boy Scouts.  Please learn these lessons, so that kids will be safe and so that you don’t make the same mistakes that too many other youth organizations have made.

So, while it is all fresh in our minds, let’s consider the lessons from this trial against the Boy Scouts of America—once America’s most trusted youth organization– as the evidence came in to a very attentive and unusually well-educated jury:

1.     You Cannot Keep Secrets About Hidden Dangers to Children.
“Youth organizations must do everything feasible to protect children, and cannot keep secrets about hidden dangers to children.”  This simple theme was the foundation for our entire case. It seemed to us—my co-counsel Paul Mones and I– to be a fair and general principle to which any youth organization would agree.  We had planned to go from that principle to showing that BSA had not adhered to the common sense rules.   Yet numerous times during the trial we were stunned to hear witnesses for the BSA who would refuse to acknowledge this basic idea. Not refuse to acknowledge that the BSA violated this idea– we expected that.  But refuse to acknowledge the basic principle itself!   The message given to the jury by such quibbling was that the BSA was playing word games and putting qualifiers on the question of safety to children. 

The fact is, the BSA has known for decades that it had a serious child abuse problem. They kept interior confidential files on the problem since the 1920’s, and certainly by the 1950’s and 60’s knew that the thousands of files (the evidence was that by 1985 the BSA had at least 3000- 4000 pedophile files)—representing thousands or tens of thousands of children abused–  meant that their program was being targeted by pedophiles. 

Yet, the BSA still refused to admit in open court the very obvious truth that it had, and has, a child abuse problem.  Several key witnesses repeatedly argued about or qualified the simple phrase “problem” in response to direct questions. It was like listening to an alcoholic or addict refuse to admit that he or she “has a problem” and needs help, when everyone around sees the chaos and insanity of substance addiction.  The jury saw this fierce and calculated denial of the problem, and quite apparently did not like it.

So the message is simple: youth organizations cannot keep secrets about hidden dangers to children. Parents and the community have a right to know if there is a risk to children.  You would give a clear warning about food poisoning among your kids, or about a dangerous crosswalk near your building.  The fact that your warning might have to be about an embarrassing problem with child abuse within your organization does not change the obligation to warn. Not even for the esteemed Boy Scouts of America.  That is one of the key lessons of this trial.

2.    As your knowledge increases, so does your responsibility. 
Oregon law, as is true of the law in most states—as well as common sense– says that whether a person acted “reasonably” under the circumstances depends upon what the person knew about the dangers at issue.  A seaside hotel owner who knows that people regularly get caught in dangerous ocean undertows right in front of the hotel has a different obligation to warn guests than that same hotel owner might have to warn about a freak and unforeseeable storm.  It is just common sense.  So, as the BSA over the years and decades gathered its knowledge about the pedophile problem within Scouting, it was no longer good enough simply to keep a list of the pedophiles so they could not come back into the organization.  At some point, the BSA had an obligation to take and use that information to make the organization safer. If the BSA headquarters had been filled with $100 bills instead of the names of little boys, and 4000 times over a 5 decade period thieves had broken in to steal money, the BSA would not simply have kept a list of the thieves to prevent them from getting into the building. The BSA would have changed its security systems to prevent new thieves from getting in!  That simple analogy perfectly describes the BSA’s response to its child abuse problem.

So the second lesson for youth organizations from the BSA trial is painfully obvious– as your knowledge increases so does your responsibility.  Is it a good thing to keep data about your safety issues?  Of course. Is it smart to make sure that a known pedophile cannot get back into your organization?  Obviously.  But that, in and of itself, is not enough to fulfill your duty to protect children.  You must look at what changes are necessary to make the organization safer.

3.    You must always put the safety of children ahead of the interests of the organization.
If there is a common thread that I have seen in advocating for child abuse victims against a variety of institutions of trust—churches, schools, foster care agencies, and now the BSA—it is this:  there seems to be an idea that the work of the organization is so important, its goals so noble, that there might be times when it is necessary to “keep a lid on this problem.”  This, of course, is the misguided historical response that produced the ongoing scandals in the Catholic Church.  But it goes way beyond that particular institution of trust.  So many youth organizations have great goals and purposes.  They do good work. They help children and help the community.  And so, when trouble comes along, their first instinct is to protect the work. And if this means keeping a potentially embarrassing problem quiet—even at the risk of keeping secrets about child abuse—they reactively take that route.  While that may be an understandable reaction, it is always disastrous, sooner or later.  The old idea that “the ends justify the means” can never apply to a sluggish response to child abuse, and too many good organizations fall prey to the temptation to protect the organization.   The safety of children, and whatever it takes to accomplish that—including blaring trumpet warnings if that is necessary—must always take precedence over the reputation of the organization.  That is lesson 3 from the BSA trial.

4.    When it goes bad, accept responsibility and apologize.
It is a timeless truth that runs through all societies at all times and places, but especially through the religions and ethical systems of Western culture: apologies heal.  This truth is central to our legal system as well, even to the point that it is an expectation in the criminal justice system that someone who is found to have broken the community’s rules will apologize—in part, at least because we understand that it will be helpful for the victim.  But it is not limited to the criminal justice courts: we expect apologies from those who have harmed others, and those who have knowingly failed to protect those in their care—especially institutions of trust such as churches, schools and youth organizations like the Boy Scouts. 

And all this is especially true for victims of child sexual abuse, who so often believe that, somehow the abuse was their fault, that they should have done something to stop it, or they should have immediately told someone—all beliefs which the mental health professionals tell us are almost universal in child abuse victims.  So when they receive an acknowledgement of responsibility and a sincere apology from those responsible for their abuse— the perpetrator of the abuse, an institution that could have prevented the abuse, or both—it is incredibly healing and empowering.  Suddenly, in one moment, the survivor realizes that his or her core beliefs about this life-altering event—“it was my fault; I am fundamentally flawed because of what I did and did not do about this”—are all wrong, and that the person or institution who is factually and morally responsible for the abuse is owning up to what happened. The weight and burden of this wrong, which has been on the shoulders of the victim for so many years or even decades, is lifted off of the victim and placed where it belongs.

This is such basic common sense and human experience that it is hard to understand why institutions of trust—such as the Boy Scouts, the Catholic Church, and others— are so reluctant to make this simple and profound gesture.  Of course, it involves the acceptance of responsibility, and too often that acceptance is slow to come for an organization that prides itself on the nobility of its purpose. It is, after all, hard for someone who thinks he is a hero, or divinely inspired, to admit that he failed utterly in one of his prime responsibilities and is now being called to account for it.  We have seen this for at least a decade in watching the Catholic Church come to grips with the magnitude of its child abuse problem—to accept that it even had a particular problem, to acknowledge that the Church badly failed in its historic response to that problem, and to make unequivocal apologies to those who were damaged by those failures. 

This same dynamic of denial seems to be true for the BSA—which, apart from the specific facts of this case in Portland, continues to deny publicly that it has historically had a serious child abuse problem—different both in type and frequency from that in society at large.  Not once during the decades that we have litigated against the BSA, in dozens of cases, whether settled or tried to a jury,  has the BSA offered even a simple apology to any of our clients.  And we know of no circumstance in which the BSA ever has issued an apology to the thousands of boys who were abused by Scout leaders.

I want to say in conclusion, again, that the Boy Scouts of America is a great organization. Our boys need good, strong role models to learn the art and habits of living an honorable life as they move into manhood.  Lord knows our society needs more young men of integrity, purpose and faith.  BSA is in a position as it enters its second century to play a unique role in shaping young men.  It is an awesome responsibility.  We can only hope that the leadership of this organization steps back, moves past the shock and shame of a jury’s stern rebuke, and takes stock of what is truly all about.  If it does, then it can move to reclaim society’s trust and admiration. If it does not, if it continues to shoot the messengers—lawyers, plaintiffs, juries, the news media– then it will lose its credibility, it will become a shell of what it once was and again could be, and it will eventually slide into irrelevance. 
 

An Advent Reflection on Child Abuse.
December 15th, 2009
By Kelly Clark

I just returned from a trip to Australia, where I traveled to take a class as part of my studies for a Master’s Degree in Theology—a course I am taking as I consider my own vocational direction, and not because of the child abuse cases I regularly file against churches.  I was glad to get away “down under,” to jump into academia, to wander about in Melbourne in the warm sunshine and friendliness of the Aussies, glad, especially, to get away from child abuse for a few days.  Or so I hoped.

My first day there—the first Sunday of Advent, as it happened–I found myself unexpectedly in a beautiful Catholic chapel at Newman College on the campus of the University of Melbourne, listening to a stunning Advent choral concert.  I pondered the ironies: me, a lawyer who has sued the Catholic Church for nearly twenty years, but also a Christian man hungry for spiritual truth and beauty, sitting among these devout Catholic people, enjoying their hospitality.  Twice in my life I have almost joined the Catholic Church, once only about 8 years ago, well after I had begun to do this kind of work, and once as a young law student; neither time have I been able to make the leap from Canterbury to Rome—from Anglicanism to Catholicism—the last time because I simply could not get around what I have learned in the child abuse cases.  But as I sat at Newman College in Melbourne, listening to Palestrina, to Thomas Talis, to Bach and Handel, I was for a few precious moments free from the agonies of the child abuse cases, free from worry about my clients– about their addictions, their depressions, their suicides– free to bask in the beauty of the Christian celebration of Advent in a Catholic chapel.

But as I walked out and headed over to the chapel at Trinity College—the Anglican college at University of Melbourne—for another service, this one a celebration of the Eucharist for the First Sunday of Advent, I thought about the day in a few weeks when I would take the deposition of the Archbishop of Portland, asking him about the actions of Father H, one of his priests who has abused children.  I thought about the questions I would need to ask him, about the way the Archdiocese of Portland has treated child abuse survivors, both historically and in litigation over the last two and a half years since the Archdiocese emerged from bankruptcy. Any of you who have followed these blogs will recall my frustration at the broken promises—promises to treat abuse victims with understanding and Christian compassion, to expedite the legal process to find resolution and healing— promises all broken in a return to scorched earth tactics in litigation.  I wondered how the same great faith that produced the beauty that I had just witnessed at Newman College Chapel could also produce a church that would repeatedly violate the Spirit of its Lord in allowing children to be abused, and then in abusing them again when they seek justice.  I considered the words of Jesus in Matthew 25—“whatever you have done to the least of these my brothers and sisters, so you have done to me”—and in a rush of anger I found myself wanting to shout those words at the legal teams for the Catholic Church and demand that they also consider them.  I quieted, then, and  prayed for guidance, for humility, lest I become too self-righteous or judgmental—I who have also failed to live up to my calling so many times, hurting so many people along the way. 

I found myself wishing I could ask the Archbishop of Portland to come sit with me at Newman Chapel, and then again at Trinity Chapel, to take in the choral anthems and to break the holy bread together, and then to talk about these things, not as trial lawyer and deponent, but as two Christian men trying to solve a problem.  I found myself thinking we could probably settle this case—probably all of the cases– in twenty minutes, focusing more on the healing of my client and the treatment for this sick priest than on anything monetary, which is not what my 17 year-old client cares about anyway.  I wondered if it might not be just that easy.

But then I reminded myself what my friends so often tell me—that I am often highly naïve and too trusting, and that I should just stop hoping for things that can never happen.  Probably they are right, I thought.  But still, as I turned up the sidewalk towards the doors of Trinity College Chapel, I felt immensely sad.  Sad for abuse survivors, most of all, but also sad for a broken church, for broken promises and for broken people.  And so I sang the opening hymn at the Advent Eucharist—“O come, O come Emmanuel, and ransom captive Israel”—with all the air in my lungs, with a broken voice, and with tears in my eyes.

www.NPR.org
By Frank James

French ‘Minister of Culture’ Frederic Mitterrand Finds Childhood Sexual Abuse Still Not Acceptable—Even to ‘Sophisticated’ European Morals.

By Kelly Clark, Child Sexual Abuse Attorney
Portland, Ore.

American political junkies often use a phrase to describe a politician’s secure standing with the electorate: “He’s a shoe-in—that is, unless he gets caught sleeping with a dead woman or a live boy.”   In other words,  Senator Bulbousnose will surely win, unless, that is, he steps across the unspoken final lines of decency we all know about—necrophilia and pedophilia being two  of them.

So, there are two things that amaze me about the unfolding scandal in France: first, that the Minister of Culture, Frederic Mitterrand, would think that his lurid book accounts of “paying for boys” in Thailand could fly under the radar and not matter to his public career; and, second, that it almost did.

In case you haven’t read about this unbelievable story, here is a quote from the Times Online, dateline October 8:

“President Sarkozy’s new Culture Minister, Frédéric Mitterrand, was struggling to save his name and possibly his job last night amid a storm over his past accounts of paying “boys” for sex. The nephew of the late President Mitterrand, who is openly gay, was thrown on the defensive after opposition politicians homed in on a memoir in which he described his delight in visiting brothels in Bangkok.

“I got into the habit of paying for boys … The profusion of young, very attractive and immediately available boys put me in a state of desire that I no longer needed to restrain or hide,” he wrote. The autobiography, La mauvaise vie (The Bad Life), was a critically acclaimed bestseller in 2005 and Mr Mitterrand, 62, a popular television presenter, was praised for his honesty. It rebounded on him this week after he leapt to the defence of Roman Polanski, the filmmaker, who was arrested in Switzerland for extradition to face a Los Angeles court for having sex with a girl aged 13.”

Now, let’s ignore the obvious about-face he has done in the last day or so, trying to play down what he has written. After all denying the obvious is what politicians do– although trying to say that admitting that he paid for sex with boys doesn’t mean that he paid for sex with boys may set a new standard.

No, I want to ponder the two aspects of all this that I mentioned above.  First, how did someone who wrote this—in 2005—get  appointed to a high post in a European government?  Surely he did not think no one would notice: he is, after all, the highly visible nephew of former President Francios Mitterrand and a TV personality in his own right.  No, it seems he was doing what a lot of celebrities do, which is to write a lurid autobiography “revealing all” to boost sales through shock value.  Surely he intended the world to know that he was tantalized and hooked by the Asian sex trade. He wanted people to know…

No, what is amazing to me is that he thought that this admission would shock people in no different way than, say, talking about drunken nights on the town or lurid sexual escapades of the kind we have grown used to with celebrities.  But that  he thought he could just cruise on in as Minster for Culture—that’s so rich in irony I can’t even know where to start— after admitting to deep-seated pedophilic behaviour is just stupefying. I don’t know whether this says more about the man’s flawed political judgment,  or about how far Western standards for decency have fallen.  After all, let’s not forget, that this book was published 4 years ago and up til now there had been no blow up.   He actually thought he could get away with it.

This brings me to the second source of amazement—he almost did. In fact, had it not been for the controversy over Switzerland’s arrest and the US’s extradition demands of filmmaker Roman Polanski for sexually abusing a 13 year old girl, we old-fashioned types in the US might not ever have heard about Mitterrand’s pedophilia.  But the fact that Europe heard about it and there was no uproar for nearly five years surely says something fundamental about the way those ‘sophisticated’ societies think (the condemnation by the avant garde of the US in fashionable circles for Polanski’s arrest is no less indicative).  Is it really okay for a major public personality now become public minister to have engaged in pedophilia?  Note that there is no indication that he has acknowledged in sorrow the wrongness of his behavior, sought help, amended his way of life.  This is not a story about a guy who couldn’t find forgiveness when he asked for it. This is about a guy who didn’t—apparently didn’t—even realize that what he had done was fundamentally wrong… even by the standards of Senator Bulbousnose… even by standards of European ‘sophistication.’  

Boy—no pun intended—did Mitterand get the surprise of his life. There are still some things that politicians, even in Europe,  can’t do. Thank God.

Blog Author: Kelly Clark, attorney
Date: August 3, 2008

No one was more hopeful than I, fifteen months ago at the conclusion of the bankruptcy of the Archdiocese of Portland. I believed– and I now see that I WANTED to believe– the promises of Archbishop John Vlazny, of his advisors and his lawyers. Those promises talked of treating victims of sexual abuse by priests with compassion. They offered hope that, in the future, the Archdiocese would be open and forthcoming about the records of past criminal conduct by pedophile priests and the bishops who covered up for them. Archbishop Vlazny himself led a mass of healing and reconciliation, again offering words of sorrow, repentance and new beginnings.

As I say, I believed these words. I stood shoulder to shoulder with the Archbishop and his lawyers, congratulated him on doing the right thing in resolving cases and in making the hard decisions to open the files of the past. See news articles here. I gave presentations and wrote articles on it all. See here. As a person of Christian faith, albeit a very flawed and broken one, I was particularly pleased that we– my clients, other abuse survivors and their lawyers– had held out for a nearly unique commitment and promise from the Archbishop that he would open the files of the past. I believed that this church could not achieve healing and reconciliation for itself, its members and its victims without shedding its old habit of secrecy, and so I was delighted at the promises. I was even proud, thinking that my clients, other abuse survivors, and I and other lawyers had really accomplished something, that we had helped change an institution that had failed to live up to its own best ideals, and certainly to the example and words of its Lord. “A new era of openness” I foolishly called it.

Well, how things change. Now– over a year later– now that the lights of the TV cameras are off, now that the media and the public aren’t watching, now that the Archdiocese does not need the cooperation of plaintiffs or their lawyers to get out of a self made mess of a bankruptcy, now that the plaintiffs bring claims one at a time– instead of dozens and scores at a time, as before– my, my how things have changed.

Compassion for victims? The Archbishop and his lawyers are litigating new cases like any other powerful corporation with a pack of insurance lawyers. He has attempted to force plaintiffs to use their full names in public litigation, breaking the time-honored practice, virtually unanimously agreed upon by all institutions facing child abuse cases (Boy Scouts, the Mormon Church, schools, etc), that recognizes that plaintiffs in these cases are crime victims, are covered with the shame of child abuse, and do not need or deserve to be identified publicly. For news coverage of this incredible move, click here. When confronted publicly about this in court papers and by the news media, the Archbishop and his spokespersons have responded in ways that are, at best, simply disingenuous–claiming that all they were doing was leaving it up to the Court. Well, that just isn’t so. The fact is, courts NEVER raise the issue on their own. It was the Archbishop’s move, and only that, that tried to force survivors to use their names publicly. Fortunately, a humane and common sense federal judge saw through the tactic, and refused to countenance it.

A new era of openness? The Archbishop and his lawyers have fought full disclosure of the files of the pedophile priests tooth and nail, and even as late as July, 2008, were filing papers in bankruptcy court and in federal court to protect the files of such notorious pedophiles as Fr Thomas Laughlin. Even in the process of mediation and arbitration of the issues relating to openness, the Archdiocese sought to secret the entire briefing and arbitration of the agreement to release files. Yes, that’s right– in a proceeding where the sole issue was the Archbishop’s promise to open old files and change old ways, he sought to have the proceeding itself kept secret! And, although the Archdiocese and its lawyers quickly point to the “thousands” of pages of documents they have publicly released, a comparison of that which they have publicly released with that which is actually in the files that they routinely must turn over to plaintiffs in litigation, shows that they continue to be quite selective in what they release. Just one example suffices; concerning Laughlin. In litigation they turn over thousands of pages of documents, because they have to. Yet, as of summer 2008, what they have posted publicly on the internet concerning Laughlin is sparse and selective. Even more staggering, as recently as late July 2008, they filed papers in bankruptcy court ON THE SIDE OF FR LAUGLHIN, as he personally objects to further public release of his files. Once again– as with bishops going back 40 years– a bishop of the Archdiocese of Portland sides with Fr Laughlin against the interests of abuse survivors and against the full truth coming out.

Choosing a new way? In the face of new claims of abuse against some of the same old perpetrators– Laughlin, Grammond, etc– the Archbishop refused offers of pre-litigation mediation time and time again, instead choosing to litigate each case as vigorously and aggressively as possible, ignoring the cruel impact that such a tactic has on abuse survivors, who most of all want and need closure and justice. He even had his lawyers resist early and global mediation suggested by the federal judge overseeing the new litigation, arguing instead for a litigation-heavy approach that undoubtedly was intended to wear down victims with the brutal tactics and unending delays of litigation.

The fact is that, for the Archdiocese of Portland, nothing has changed. In my view, the Archbishop has broken, or stretched to the breaking point, virtually every one of his bankruptcy promises. It is really no different than the bishops before him, and their promises to “handle” problems of abusive priests. After years of litigation, we learned what that meant: it meant nothing. It appears now, as to Archbishop John Vlazny’s promises at the conclusion of the bankruptcy, it still means nothing. No one is more disappointed than I.